Opinion
00 Civ. 5295 (SHS) (KNF)
July 31, 2002
REPORT AND RECOMMENDATION
I. INTRODUCTION
Before the Court is Leopold Jose Carmona-Richardson's ("Carmona-Richardson" or petitioner") pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2241. Petitioner challenges a final order of removal from the United States issued by the Immigration and Naturalization Service ("INS"). Petitioner contends that he is entitled to relief pursuant to the Immigration and Nationality Act ("INA") § 212(c) ("§ 212(c)"), 8 U.S.C. § 1182 (c) (repealed by the Illegal Immigration Reform and Immigrant Responsibility Act ("IRIRA") § 304[b]); INA § 240A ("§ 240A"), 8 U.S.C. § 1229b; and INA § 212(h) ("§ 212(h)"), 8 U.S.C. § 1182 (h).
Section 212(c), which was codified at 8 U.S.C. § 1182 (c), stated: "Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General. . . ." See INS v. St. Cyr, 533 U.S. 289, 295, 121 S.Ct. 2271, 2276 (2001) (quoting 8 U.S.C. § 1182[c], prior to its repeal in 1996).
Section 240A provides, in pertinent part:
The Attorney General may cancel removal in the case of an alien who is admissible or deportable from the United States if the alien.., has not been convicted of an aggravated felony.8 U.S.C. § 1229b(a)(3).
Section 212(h) provides that the Attorney General may, in his discretion, waive the application of certain provisions of 8 U.S.C. § 1182 which make aliens inadmissible if, inter alia:
in the case of an immigrant who is the spouse, parent, son or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's exclusion would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien. . . .8 U.S.C. § 1182 (h)(1)(B).
Petitioner also contends that his constitutional rights under the Equal Protection Clause of the Fourteenth Amendment were violated by the order of removal because the basis for that order, § 440(d) of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 8 U.S.C. § 1227, bars discretionary relief for aliens who face deportation because of their crimes; however, under 8 U.S.C. § 1182 (h), discretionary relief is available for certain aliens who are excluded, i.e., prevented from re-entering the United States after they acquiesced to removal. See Domond v. INS. 244 F.3d 81, 87 (2d Cir. 2001). Thus, aliens who have committed the same crimes are treated differently based on whether they left the country voluntarily or were deported. See id. Respondent opposes petitioner's application for a writ of habeas corpus. For the reasons set forth below, I recommend that the petition be denied.
Section 440(d) of AEDPA identifies a broad set of offenses for which convictions would preclude discretionary relief, including convictions for an aggravated felony, a drug conviction, certain weapons or national security violations, and multiple convictions involving crimes of moral turpitude. See St. Cyr, 533 U.S. at 297, 121 S.Ct. at 2277.
II. BACKGROUND
Carmona-Richardson is a native and citizen of the Dominican Republic. He was admitted to the United States on September 14, 1976, at New York, New York, as a lawful permanent resident, when he was 18 years old. On March 15, 1984, petitioner entered a guilty plea in New York State Supreme Court, New York County, to fifth-degree criminal sale of a controlled substance (cocaine), see N.Y. Penal Law § 220.31, which is an aggravated felony, see 8 U.S.C. § 1101 (a)(43). On April 5, 1984, he was sentenced, as a repeat felony offender, to two to four years' imprisonment.
The statutory definition of "aggravated felony" incorporates other statutory definitions. See United States v. Pornes-Garcia, 171 F.3d 142, 145 (2d Cir. 1999). In Pornes-Garcia, the Second Circuit explained that 8 U.S.C. § 1101(a)(43) "defines 'aggravated felony' as, among other things, 'illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).' 8 U.S.C. § 1101 (a) (43)(B)." Id. The court went on to explain that section 1101(a)(43) "further provides that the term aggravated felony 'applies to an offense described in [section 1101(a)(43)] whether in violation of Federal or State law.'. . . In section 924(c)(2) of title 18, a "drug trafficking crime' is defined as including "any felony punishable under the Controlled Substances Act. . . . The Controlled Substances Act, in turn, defines 'felony' as 'any Federal or State offense classified by applicable Federal or State law as a felony.'" Id. (citations omitted).
Five years later, on May 11, 1989, following a jury trial in New York State Supreme Court, New York County, Carmona-Richardson was found guilty of third-degree criminal sale of a controlled substance (heroin) and third-degree criminal possession of a controlled substance (heroin) with intent to sell it, see N.Y. Penal Law §§ 220.16 220.39. Both crimes are aggravated felonies pursuant to 8 U.S.C. § 1101 (a)(43). On June 1, 1989, the trial court sentenced petitioner, as a repeat felony offender, to concurrent terms of four and one-half to nine years' imprisonment. The New York State Supreme Court, Appellate Division, First Department, affirmed petitioner's conviction unanimously on April 2, 1991. See People v. Carmona, 172 A.D.2d 151, 567 N.Y.S.2d 691, 692 (App. Div. 1st Dep't 1991). Petitioner's application for leave to appeal was denied by the New York Court of Appeals on August 21, 1991. See People v. Carmona, 78 N.Y.2d 963, 574 N.Y.S.2d 943 (1991).
On January 30, 1998, following a jury trial in New York State Supreme Court, New York County, Carmona-Richardson was found guilty of third-degree criminal sale and third-degree criminal possession of a controlled substance (heroin), see N.Y. Penal Law §§ 220.16 220.39, both aggravated felonies, see 8 U.S.C. § 1101(a)(43). The trial court sentenced petitioner, as a repeat felony offender, to concurrent terms of four and one-half to nine years' imprisonment. The New York State Supreme Court, Appellate Division, First Department, affirmed petitioner's conviction unammously on October 14, 1999. See People v. Carmona, 265 A.D.2d 197, 696 N.Y.S.2d 147, 148 (App.Div. 1st Dep't 1999). The New York Court of Appeals denied petitioner's application for leave to appeal on January 4, 2000. See People v. Carmona, 94 N.Y.2d 877, 705 N.Y.S.2d 9 (2000).
On March 31, 1998, Carmona-Richardson was served a Notice to Appear in Removal Proceedings. The Removal Proceeding was initiated pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (a controlled substance offense other than a single offense involving possession of 30 grams or less of marijuana); and § 237(a)(2)(A)(iii), 8 U.S.C. § 1227 (a)(2)(A)(iii) (an aggravated felony).
A hearing was held on June 3, 1998, at which an immigration judge ("IJ") granted Carmona-Richardson's request for an adjournment of the proceedings to enable him to obtain counsel. The hearing continued on October 26, 1998. At that time, petitioner, appearing with an accredited immigration representative, urged the IJ to grant him a discretionary waiver of deportation pursuant to § 212(c). Petitioner contended that he was eligible for a § 212(c) waiver, even though the provision has been repealed, because the criminal conduct that served as a predicate for his order of removal predated the IIRIRA effective date, April 1, 1997. On October 26, 1998, the H found that petitioner was removable as charged. Specifically, the H found that petitioner's 1984 conviction for fifth-degree sale of a controlled substance, and his 1989 convictions for third-degree criminal sale and third-degree criminal possession of a controlled substance, rendered him an aggravated felon and that, as such, he was not entitled to the relief of cancellation of removal under § 240A. The IJ ordered Carmona-Richardson removed to the Dominican Republic.
On November 4, 1998, Carmona-Richardson filed an appeal with the Board of Immigration Appeals ("BIA"). On April 2, 1999, the BLA, in a per curiam opinion, dismissed Carmona-Richardson's appeal. The BIA's decision rendered Carmona-Richardson's removal order final. See Lleo-Fernandez v. INS, 989 F. Supp. 518, 520 n. 2 (S.D.N.Y. 1998).
On May 15, 2000, petitioner filed the instant habeas corpus petition. On October 2, 2000, in order to preserve the court's jurisdiction to reach the merits of this case, petitioner's removal was stayed. See 28 U.S.C. § 1651.
III. DISCUSSION
Eligibility for § 212(c) Waiver
Prior to the enactment of AEDPA in 1996, certain aliens were entitled to apply for a waiver from deportation pursuant to § 212(c). Section 212(c), codified at 8 U.S.C. § 1182 (c), stated:
"Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General. . . ."See INS v. St. Cyr, 533 U.S. 289, 295, 121 S.Ct. 2271, 2276 (2001) (citing 8 U.S.C. § 1182[c][repealed][1996]).
In 1990, Congress amended § 212(c) to exclude from eligibility for a waiver any alien who had been convicted of one or more aggravated felonies and had served a term of imprisonment of at least five years. See Immigration Act of 1990, Pub.L. No. 101-649, § 511, 104 Stat. 5052 (amending 8 U.S.C. § 1182[c]); St. Cyr, 533 U.S. at 297, 121 S.Ct. at 2277.
On April 24, 1996, Congress limited further the availability of § 212(c) relief through the enactment of § 440(d) of AEDPA, which excluded from § 212(c) relief an alien convicted of certain enumerated offenses regardless of the term of imprisonment served by the alien as a result of the conviction. See AEDPA § 440(d), 8 U.S.C. § 1227 (precluding from discretionary relief aliens convicted of committing, inter alia an aggravated felony, a drug-related crime, or two or more offenses involving moral turpitude).
On September 30, 1996, Congress enacted the IIRIRA, which repealed § 2 12(c) altogether, and eliminated the proceedings previously known as "deportation" and "exclusion." Section 212(c) was replaced with a different form of discretionary relief from deportation known as cancellation of removal. See IIRIRA § 304(b), 8 U.S.C. § 1229a. Cancellation of removal was made available only to aliens who, inter alia, had hot been convicted of an aggravated felony. See § 240A, 8 U.S.C. § 1229b(a).
In June 2001, the United States Supreme Court addressed the question, whether provisions of AEDPA and IIRIRA repealing discretionary relief from deportation applied retroactively to an alien whose conviction was obtained through a plea agreement. See St. Cyr, 533 U.S. at 320, 121 S.Ct. at 2290. The Court held that "§ 212(c) relief remains available for aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." Id. at 326, 2293. In reaching its conclusion, the Court reasoned that:
[This] presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.Id. at 316, 2288 (citation omitted) (internal quotation marks omitted).
Carmona-Richardson claims that he is eligible for relief pursuant to § 212(c) because one of the convictions which served as a predicate for his order of removal, namely, his 1984 conviction for fifth-degree criminal sale of a controlled substance, was obtained through a plea agreement. Therefore, petitioner contends, despite IIRIRA's elimination of § 212(c), the relief once provided under that section remains available to him because he was eligible for § 212(c) relief under the law, at the time of his plea. Consequently, petitioner maintains, the BIA erred when it concluded that he was ineligible for a discretionary waiver of deportation pursuant to § 212(c). Accordingly, petitioner argues that to bar him from applying for a waiver under that provision would result in an impermissible retroactive application of AEDPA and IIRIRA.
Petitioner's claim is without merit. Petitioner's order of removal was based not only on his 1984 conviction, but also on his 1989 convictions for third-degree sale and third-degree possession of a controlled substance; those convictions were obtained, not through a guilty plea, but through a jury verdict. Therefore, the Supreme Court's ruling in St. Cyr, making § 212(c) relief available to aliens who pled guilty prior to the enactments of AEDPA and IIRIRA, does not apply in this case.
Moreover, when released from New York State custody in 1995, Carmona-Richardson had served a term of imprisonment of more than five years for his 1989 aggravated felony convictions. Therefore, under the 1990 amendment to § 212(c), which precluded from discretionary relief anyone convicted of an aggravated felony who had served a term of imprisonment of at least five years, petitioner became ineligible for a discretionary waiver from deportation in 1995.
Furthermore, on November 4, 1998, petitioner was convicted of third-degree sale and third-degree possession of a controlled substance. Consequently, under AEDPA and IIRIRA, which were enacted in 1996, the Attorney General is barred from granting petitioner a discretionary waiver from deportation. Therefore, the BIA did not err in affirming the IJ's removal order, and petitioner is not eligible for § 212(c) relief.
Eligibility for Other Forms of Relief
Petitioner contends that he is eligible for cancellation of removal pursuant to § 240A. Section 240A, codified at 8 U.S.C. § 1229b(a)(3), permits the Attorney General to cancel removal in the case of an alien who has not been convicted of an aggravated felony. Carmona-Richardson was convicted of aggravated felonies in 1984, 1989 and 1998. Therefore, petitioner is not eligible for relief under § 240A.
Petitioner also contends that he is eligible for waiver of inadmissibility under § 212(h). Petitioner did not raise a § 212(h) claim either before the IJ or on appeal to the BIA. Petitioner has failed to exhaust his administrative remedies with respect to this claim; therefore, the claim should be dismissed. See Correa v. Thornburgh, 901 F.2d 1166, 1170 (2d Cir. 1990) (observing that claims not raised in administrative proceedings can be rejected on that basis). Furthermore, Carmona-Richardson has not shown that he meets the statutory requisites for a § 212(h) Consequently, petitioner is not eligible for § 212(h) relief
Among other things, petitioner fails to allege that his exclusion would result in "extreme hardship" to a resident spouse, parent, son or daughter. Moreover, § 212(h) relief is unavailable to an alien who has been convicted of an aggravated felony. See 8 U.S.C. § 1182(h)(1) and (2).
Carmona-Richardson also claims that his rights to equal protection under the Fourteenth Amendment have been violated because the basis for his order of removal, § 440(d) of AEDPA ( 8 U.S.C. § 1227), involves different treatment for aliens who have committed the same crimes, based on whether they left the country voluntarily or were deported. In Domond, 244 F.3d at 87-88, the Second Circuit explained that Congress, in enacting amendments to the immigration laws, articulated a rational reason for distinguishing between the two classes of aliens. Therefore, petitioner's claim that § 440(d), the basis for his order of removal, violates his Fourteenth Amendment right to equal protection is without merit.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that petitioner's application for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, New York, N.Y. 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Stein. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985);IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).