Opinion
No. 01 Civ. 3432 (MBM)
October 15, 2001
NOEL ATKINSON, Petitioner Pro Se.
MARY JO WHITE, ESQ., United States Attorney, for the Southern District of New York, KRISHNA R. PATEL, ESQ., Assistant United States Attorney, New York.
AMENDED OPINION AND ORDER
Noel Barrington Atkinson petitions for a writ of habeas corpus, claiming that an Immigration Judge and the Board of Immigration Appeals abused their discretion and violated his constitutional rights by refusing to suspend or waive his deportation order. The government contends that this court lacks subject matter jurisdiction to review the discretionary decisions that petitioner challenges, and denies that there has been a constitutional violation. For the reasons set forth below, the writ is denied and the petition dismissed.
I.
Atkinson, 32 years old, entered the United States on February 16, 1988 as a lawful permanent resident. (Gov't Resp. Ex. A at 1) On June 29, 1990, he pleaded guilty to possession of a controlled substance (cocaine) in the fifth degree in New york State Supreme Court, Kings County. (Id. at 1-2) He was sentenced to a one-year prison term and served eight months from November 1989 to June 1990. (Id. at 18) In November of 1994, he pleaded guilty to robbery in the second degree and was sentenced to a term of between three and six years. (Id. at 18) He served four years on that charge, from November 1994 until December 1998. (Id.)
As a result of Atkinson's two convictions, the Immigration and Naturalization Service ("INS") began deportation proceedings on December 22, 1995 pursuant to the Immigration and Naturalization Act ("INA") of 1952, § 241(a)(2)(A) (iii) (allowing deportation for conviction of an aggravated felony) and § 241(a)(2)(B)(i) (allowing deportation for certain narcotics convictions). 8 U.S.C. § 1251 (a)(2)(A) (iii), (B)(i) (1994) (current version at 8 U.S.C. § 1227 (a)(2)(A) (iii), (B)(i) (1994 Supp. V 1999)). (Gov't Resp. Ex. A at 1) At a June 13, 1996 hearing before an Immigration Judge ("IJ") at the Downstate Correctional Facility in Fishkill, N.Y., the government dropped its reliance on the robbery charge under § 241(a)(2)(A) (iii), but continued to seek, and obtained, an order of deportation under § 241(a)(2)(B)(i) on the basis of petitioner's 1990 narcotics conviction. (Id. at 2-3) Although petitioner requested a discretionary suspension of deportation under INA § 212(c), 8 U.S.C. § 1182 (c) (1994), the IJ declined to consider the particular equities of petitioner's case. The IJ concluded that § 440(d) of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 had stripped him of the discretion to suspend the deportation of aliens convicted of drug offenses. See AEDPA, Pub.L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (effective Apr. 24, 1996), repealed by Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Pub L. No. 104-208, § 304(b) 110 Stat. 3009-546, -597 (effective Apr. 1, 1997) (Atkinson Pet. of 10/31/97 Ex. B at 11-12)
Atkinson appealed to the Board of Immigration Appeals ("BIA"), challenging the constitutionality of retroactive application of AEDPA § 440(d) to his case, which was already pending when the legislation was enacted on April 24, 1996. The BIA rejected his claim on February 25, 1997. (Atkinson Pet. of 10/31/97 ¶ 10) He then filed an appeal in the United States Court of Appeals for the Second Circuit. On May 6, 1997, the Second Circuit dismissed his direct appeal for lack of subject matter jurisdiction but transferred the matter to this court to be considered as a petition for a writ of habeas corpus. (Id. Ex. C)
On September 18, 1998, while Atkinson's petition was before Judge Cedarbaum in this district, the Second Circuit rendered its decision in Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), nolding that AEDPA § 440(d) does not apply retroactively to cases already pending at the time of enactment. Id. at 128-30. In light of the Henderson decision, Judge Cedarbaum dismissed Atkinson's habeas petition and remanded his case to the BIA for further administrative proceedings. Atkinson v. INS, 98 Civ. 51 (S.D.N.Y. Aug. 31, 1999). On November 29, 1999, the BIA held that petitioner was indeed eligible for § 212(c) relief, and remanded to the IJ for a determination as to whether discretionary relief was warranted. (Gov't Resp. Ex. A at 3-4)
In considering petitioner's § 212(c) application, the IJ weighed the social and humane considerations presented in petitioner's favor against the factors showing his undesirability as a permanent resident. (Id. at 4) The IJ heard testimony on May 5, May 18, and June 23, 2000 from petitioner himself, as well as from Ms. Natalie Ramdhan, the mother of two of petitioner's five children. (Id. at 8) In a written opinion dated August 4, 2000, the IJ ultimately denied § 212(c) relief. (Id. Ex. A)
In Atkinson's favor, the IJ noted that he had been a resident of the United States for over 12 years, with a relatively stable employment history. (Id. at 40-42) He also considered that petitioner's closest family members (including four of his five children) reside in the United States, that he is a concerned father who wishes to remain with his children, that his children and Ms. Ramdhan could use his financial assistance, and that his family will suffer emotional hardship if he is deported. (Id.)
However, the IJ noted also that Atkinson had been convicted of two serious crimes, one of which was a violent crime. (Id. at 42) Although Atkinson participated in psychological, educational, and vocational programs while incarcerated, the IJ observed that petitioner was the subject of six disciplinary violations, two of which involved violent conduct. (Id. at 43-44) Based in part on these incidents, the IJ questioned Atkinson's willingness to take responsibility for his actions, as well as his remorsefulness and level of rehabilitation. (Id. at 44) Ultimately, the IJ determined that defendant's criminal record, and particularly that he had spent five of his 12 years in the United States in jail, outweighed any equities in petitioner's favor. (Id. at 44-45) On February 26, 2001, the BIA upheld the opinion of the IJ on appeal. (Gov't Resp. Ex. B at 2)
In Atkinson's current application for a writ of habeas corpus, he attacks the IJ's § 212(c) findings, arguing that they constitute an abuse of discretion and that they are the product of misrepresentation of facts and testimony. (Atkinson Pet. of 3/20/01 at ¶ 8-9)
He also raises a second claim. He alleges a constitutional violation with regard to his separate request for a waiver of deportation under INA § 212(h), 8 U.S.C. 1182(h) (1994 Supp. V 1999) — a request he first raised at the conclusion of his June 23, 2000 hearing before the IJ. Although INA § 212(h) allows the Attorney General to "waive" deportation for aliens such as petitioner who have American parents or children who may be harmed, id., the IJ determined that petitioner was ineligible as a matter of law. (Gov't Resp. Ex. A at 7) First, the IJ observed that § 212(h) cannot be used to waive deportation that is based on a serious drug offense; the statute specifically excludes such offenses from the list of criminal activities that can be excused. See 8 U.S.C. § 1182 (h). (Gov't Resp. Ex. A at 8) In addition, the IJ determined that petitioner's claim could not proceed because a § 212(h) waiver of deportation must be issued in conjunction with an adjustment of status, which petitioner had never sought. (Id.) Petitioner now asserts that his statutory ineligibility for § 212(h) relief constitutes a violation of equal protection and a denial of due process of law. (Id.)
II.
Before I can consider the merits of petitioner's two claims, I must first determine whether I have subject matter jurisdiction. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102 (1998). Although petitioner's claims raise simple and straightforward issues on the merits, the question of subject matter jurisdiction requires a far more complicated analysis of the availability and scope of habeas corpus jurisdiction under the current immigration laws. The government argues that this court lacks subject matter jurisdiction over petitioner's § 212(c) claim because the discretionary determinations of executive officials are not subject to review in habeas proceedings. In order to assess this claim, I examine the statutory framework for this court's exercise of habeas corpus jurisdiction and the resulting scope of habeas review.
The government makes no jurisdictional challenge to petitioner's § 212(h) claim. However, as the parties to an action cannot concede subject matter jurisdiction, Mitchell v. Maurer, 293 U.S. 237, 244 (1934), I address jurisdiction over this claim, as well, below.
A. Statutory Regime Governing Habeas Corpus Review of BIA Determinations
Habeas corpus jurisdiction over petitioner's claims is governed by a complex statutory regime that reflects the interaction of several different pieces of legislation. Prior to 1996, habeas corpus review of deportation orders would have been exercised pursuant to § 106 of the INA, as well as 28 U.S.C. § 2241, the general habeas corpus statute. See INS v. St. Cyr, 121 S.Ct. 2271, 2284 (2001) (rejecting the notion that INA § 106 in any way supplanted existing habeas jurisdiction under 28 U.S.C. § 2241).
Prior to its 1996 amendment and subsequent repeal, INA § 106 read, in relevant part, as follows: "[A]ny alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." 8 U.S.C. § 1105a(a) (10) (1994), amended by AEDPA §§ 401(e), 440(a), 110 Stat. at 1268, 1276-77, and repealed by IIRIRA § 306(b), 110 Stat. at 3009-612.
The statute derives directly from § 14 of the Judiciary Act of 1789 and the 1867 Act. See Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82; Act of Feb. 5, 1867, ch. 28, 14 Stat. 385; St. Cyr, 121 S.Ct. at 2282 n. 25. In relevant part, it authorizes federal courts to grant writs of habeas corpus when an alien "is in custody under or by color of the authority of the United states," 28 U.S.C. § 2241 (c)(1) (1994), or "is in custody in violation of the Constitution or laws or treaties of the United States," id. § 2241(c)(3).
The immigration reforms of 1996, however, have complicated matters. Section 401(e) of the AEDPA, 110 Stat. at 1268, repealed all habeas corpus jurisdiction under INA § 106, and section 440(a) of the AEDPA, 110 Stat. at 1276-77, replaced the stricken text with a new provision eliminating all forms of direct judicial review for aliens facing deportation on the basis of criminal convictions. Shortly thereafter, Congress enacted IIRIRA, which contains two different sets of provisions, both of which have essentially "reiterated and expanded" the AEDPA's habeas reforms. Henderson, 157 F.3d at 117. One set, "the IIRIRA permanent provisions," effected a broad overhaul of the immigration law that applies to all proceedings commenced after April 1, 1997. See IIRIRA § 306(b), 110 Stat. at 3009-612 (repealing INA § 106); IIRIRA § 309(a), 110 Stat. at 3009-625 (setting effective date); 8 U.S.C. § 1252 (1994 Supp. V 1999) (codifying new judicial review provisions). The second set of IIRIRA provisions, "the IIRIRA transition rules," contains more limited changes that apply to all proceedings that were commenced prior to April 1, 1997, but became administratively final after October 30, 1996. IIRIRA § 309(c)(4), 110 Stat. at 3009-626.
AEDPA § 440(a) reads as follows: "Any final order of deportation against an alien who is deportable by reason of having committed [certain criminal offenses] shall not be subject to review by any court." AEDPA § 440(a), 110 Stat. at 1276.
Under the present statutory regime, then, the availability of habeas corpus relief to petitioner is determined by the general habeas corpus statute, 28 U.S.C. § 2241, and also by § 106 of the INA, as amended both by AEDPA §§ 401(e) and 440(a), and by the IIRIRA transition rules. However, because AEDPA § 401(e) has clearly eliminated habeas corpus jurisdiction under INA § 106, petitioner's only possible basis for habeas relief is 28 U.S.C. § 2241. The Supreme Court recently determined that § 2241 habeas corpus review remains available for relief, despite some speculation that the AEDPA and the IIRIRA permanent provisions had repealed all habeas jurisdiction.St. Cyr, 121 S.Ct. at 2284-87; Calcano-Martinez v. INS, 121 S.Ct. 2268, 2270 (2001). The Court reasoned that "a clear statement of congressional intent" is required "to repeal habeas jurisdiction," St. Cyr, 121 S.Ct. at 2278 (citing Felker v. Turpin, 518 U.S. 651, 660-61 (1996), and Ex Parte Yerger, 75 U.S. (8 Wall.) 85, 102 (1868)), and that neither AEDPA § 440(a) nor the permanent provisions of IIRIRA (which do not mention § 2241 explicitly) were sufficiently precise to eliminate all habeas review, St. Cyr, 121 S.Ct. at 2284-87.
Petitioner's case was commenced prior to April 1, 1997, and became final after October 30, 1996 — on February 25, 1997 to be precise. Hence the IIRIRA transition rules, not the permanent rules, apply.
Although the Court's decision in St. Cyr addressed only the IIRIRA permanent provisions, the Court's reasoning makes it clear that § 2241 jurisdiction survives the IIRIRA transition rules as well. The language of the IIRIRA transition rules demonstrates no clear congressional intent to repeal habeas jurisdiction under § 2241. The only potentially restrictive provisions state that "there shall be no appeal of any discretionary decision under [sections 212(c) and 212(h)]," IIRIRA § 309(c)(4)(E), 110 Stat. at 3009-626 (emphasis added), and that "there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed [certain crimes]," IIRIRA § 309(c)(4)(G), 110 Stat. at 3009-626 to -27 (emphasis added). This language limiting "appeal[s]," however, makes no mention of habeas jurisdiction under § 2241. Because mere references to "judicial review" do not include "habeas corpus" jurisdiction, St. Cyr, 121 S.Ct. at 2285-87, the text of § 309(c)(4)(E) and (G) is insufficient on its face to restrict § 2241 habeas jurisdiction. See Henderson, 157 F.3d at 117-22 (concluding, prior to St. Cyr, that the IIRIRA transition rules did not repeal § 2241 habeas jurisdiction).
B. The Scope of § 2241 Habeas Corpus Review
Having determined that if this court has jurisdiction at all over Atkinson's claims it arises under 28 U.S.C. § 2241, I must now determine the permissible scope of habeas review under the statute and its common law construction.
1. Petitioner's INA § 212(c) Claim. — With regard to petitioner's § 212(c) abuse of discretion claim, I must decide whether § 2241 habeas jurisdiction permits review of discretionary determinations by the executive branch. I conclude that it does not.
In a habeas petition for relief that depends on the exercise of discretion, it is important to distinguish between assertions of legal "eligibility for discretionary relief, on the one hand," and fact-based challenges to an executive official's "exercise of discretion, on the other." St.Cyr, 121 S.Ct. at 2283; see Goncalves v. Reno, 144 F.3d 110. 125 (1st Cir. 1998) Petitioner raises the latter type of claim. In arguing that the IJ and BIA have "abuse[d] [their] discretion in denying . . . discretionary relief from deportation," (Atkinson Pet. of 3/30/01 ¶ 9-10) petitioner concedes that the IJ and the BIA have exercised discretion; he challenges only the manner in which they have exercised it.
The Supreme Court in St. Cyr did not specify whether the scope of § 2241 habeas review includes review of the factual and discretionary determinations of the BIA. The Court held only that pure questions of law, such as the eligibility question presented by petitioner St. Cyr, are reviewable under the habeas corpus jurisdiction conferred by § 2241. St. Cyr, 121 S.Ct. at 2282. The Court specifically noted, however, "that the scope of review on habeas is considerably more limited than on APA-style review," id. at 2287, and it pointed out that St. Cyr was not asserting "any right to have an unfavorable exercise of the Attorney General's discretion reviewed in a judicial forum," Id. at 2278, as petitioner now asserts in this case.
The Second Circuit has similarly declined to define the "outer perimeters of [§ 2241] review," Henderson, 157 F.3d at 112, but it too has expressed doubt that § 2241 permits habeas review of discretionary determinations. In Henderson, the Second Circuit held that "courts have the power to address the pure questions of law presented in the instant cases," id., but it went out of its way to note that it was "not called upon . . . to review the agency's factual findings or the Attorney General's exercise of her discretion," id. at 120. The Court stated its belief "that the scope of [§ 2241] review is considerably narrower than the review that was available prior to the 1996 amendments, " and that "the law now is much like it was prior to enactment of [INA § 106]," and "similar to that which existed under the early statutes that were intended to make . . . administrative decisions nonreviewable to the fullest extent possible under the Constitution." Id. at 119 (internal quotation marks omitted).
Although at least one court has held that § 2241 habeas corpus review over the discretionary INA § 212(c) decisions of the IJ and BIA is proper, see Sabino v. Reno, 8 F. Supp.2d 622, 640-41 (S.D. Tex. 1998), this result is at odds with the recent decisions of both the Second Circuit and the Supreme Court. The Court in Sabino held that the scope of habeas review under § 2241 is no different from what it once was under INA § 106, and that habeas review under that statute is therefore to be exercised under the APA's "abuse of discretion" standard. Id. at 641.
Following the guidance of the Supreme Court in St. Cyr and the Second Circuit in Henderson, however, I conclude that once the BIA exercises discretion, its decisions are not reviewable by this court under § 2241. In order to be "considerably more limited than on APA-style review," St. Cyr, 121 S.Ct. at 2287, the scope of habeas review under § 2241 must exclude all discretionary agency determinations. It is difficult to imagine any standard of review that would be considerably more limited than APA-style "arbitrary, capricious [or] abuse of discretion" review, APA § 10(e), 5 U.S.C. § 706 (2)(A) (1994), but yet still meaningful or different from no review at all. Furthermore, an examination of the law "like it was prior to enactment of tue INA," Henderson, 157 F.3d at 119, supports the notion that review of discretionary decisions should not be available. Under Heikkila v.Barber, 345 U.S. 229 (1952), which the Second Circuit cites as an example of the pre-INA § 106 case law that prevails today, Henderson, 157 F.3d at 116, 119-20, habeas review was "limited to the enforcement of due process requirements," and "very different from . . . deciding on `the whole record' whether there is substantial evidence to support administrative findings of fact," Heikkila, 345 U.S. at 236.
To decide this case, it is not necessary that I outline the precise parameters of § 2241 review in all circumstances, particularly absent guidance from either of the appellate courts above me, both of which have declined such an exegesis. I need and do hold only that § 2241 habeas corpus jurisdiction does not extend so far as to permit the review of discretionary administrative determinations.
2. Petitioner's INA § 212(h) Claim. — With regard to petitioner's § 212(h) claim, however, I find that jurisdiction is proper. In this claim, petitioner asserts a violation of his due process and equal protection rights. Even under the most restrictive readings of § 2241 after the 1996 amendments, courts have acknowledged that habeas jurisdiction is appropriate to correct a "grave constitutional error," Powell v. Jennifer, 937 F. Supp. 1245, 1252-53 (E.D. Mich. 1996), or a "fundamental miscarriage of justice," Eltayeb v. Ingham, 950 F. Supp. 95, 100 (S.D.N.Y. 1997); Mbiya v. INS, 930 F. Supp. 609, 612 (N.D. Ga. 1996). A bona fide due process or equal protection claim would surely clear even this difficult jurisdictional threshold.
III.
Having found jurisdiction, I can now consider petitioner's § 212(h) claim on its merits. For the reasons set forth below, those merits are lacking. Petitioner uses the terms "due process" and "equal protection" interchangeably to argue that denial of § 212(h) relief was unconstitutional. (Atkinson Pet. of 3/20/2001 ¶ 9-10) He asserts that "relief that is available to the undocumented or non-lawful permanent resident should also be made available to similarly situated lawful permanent residents." (Id. ¶ 10)
Petitioner's claim seems to be based on a newly added provision of § 212(h) that prevents legal permanent residents who have been convicted of aggravated felonies from obtaining relief, but erects no such barrier for illegal aliens. At least two courts have held that this distinction has no rational basis and therefore violates equal protection, as enforced through the Fifth Amendment Due Process Clause.See Jankowski v. INS, 138 F. Supp.2d 269, 285 (D. Conn. 2001); Song v.INS, 82 F. Supp.2d 1121, 1131-34 (C.D. Cal. 2000). But see Lara-Ruiz v.INS, 241 F.3d 934, 946-48 (7th Cir. 2001) (finding no equal protection violation).
The provision reads as follows: "No waiver shall be granted . . . in the case of an alien who has previously been admitted for permanent residence if . . . since the date of such admission the alien has been convicted of an aggravated felony . . ." IIRIRA § 348(a), 110 Stat. at 3009-639, 8 U.S.C. 1182(h) (1994 Supp. V 1999). It applies to all proceedings that became final after September 30, 1996, id. § 348(b), and hence it applies to petitioner.
However, I need not address the equal protection issue because petitioner's ineligibility for § 212(h) relief in this case has nothing to do with an aggravated felony conviction; rather, he is ineligible for relief because he has been convicted of a drug charge. Regardless of whether an alien is legally or illegally in the country, § 212(h) provides no relief if he is deportable on the basis of a serious controlled-substance violation. Section 212(h) specifically excludes from relief all aliens subject to deportation under subsection 212(a)(2)(A)(i) (II). except for those convicted of possession of 30 grams or less of marijuana. See INA § 212(a)(2)(A)(i) (II), 8 U.S.C. 1182(a)(2)(A)(i) (II) (1994) (making deportable all aliens convicted of a controlled-substance violation). Because petitioner would not be eligible for relief even if he were an illegal alien, there is no disparate effect in this case, and no basis upon which to find an equal protection violation. See Taveras-Lopez v. Reno, 127 F. Supp.2d 598, 606-07 (M.D. Pa. 2000) (disposing of an identical § 212(h) equal protection claim in which ineligibility for relief was based on petitioner's drug crimes); Hypolite v. Blackman, 57 F. Supp.2d 128, 132-34 (M.D. Pa. 1999) (same)
The IJ and the BIA properly determined that petitioner was ineligible for relief from deportation under INA § 212(h), and this determination did not violate any constitutional rights. Therefore, petitioner's habeas corpus petition on this claim is denied.
* * *
Because I am without subject matter jurisdiction to consider petitioner's claim that the IJ and BIA abused their discretion under INA § 212(c), I decline to reach those claims. As for the remainder of petitioner's claims, his assertions are without merit, and his petition for a writ of habeas corpus is dismissed.
Because this disposition addresses an unresolved question of law as to whether the scope of § 2241 habeas corpus review extends to discretionary determinations by the executive branch, a certificate of appealability will issue.
SO ORDERED: