Opinion
99-CV-0048 (TJM/GLS).
November 18, 1999
JUAN PEREZ CUEVAS, Petitioner, Pro-se, c/o Mrs. Wanda Servano, Bronx, New York.
HON. DANIEL FRENCH, OF COUNSEL, JAMES W. GRABLE, Special Asst. U.S. Attorney, United States Attorney, Syracuse, New York.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Honorable Thomas J. McAvoy, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed the habeas corpus petition on January 13, 1999. On March 2, 1999, this court issued an Order denying petitioner's motion for appointment of counsel, granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent, and requiring service of an answer or other pleading by respondent. On May 4, 1999, respondent filed a motion to dismiss the habeas corpus petition on jurisdiction grounds, or alternatively, for the proceedings to be transferred to the Second Circuit Court of Appeals. (Dkt. No. 8). On June 8, 1999, petitioner filed a memorandum in opposition. (Dkt. No. 14).
1. Background and Procedural History
Petitioner was admitted to this country as a lawful permanent resident on November 23, 1975. See Declaration of James Grable, at ¶ 6. He is a native and citizen of the Dominican Republic. Id. He is married and has two children, both citizens of this country. See Decision of the Immigration Judge, at Exh. C of Respondent's Memorandum of Law.
Petitioner was convicted of criminal possession of a controlled substance in the Third Degree on May 5, 1986. On June, 27, 1997, the petitioner was convicted of attempted criminal possession of a controlled substance in the Fourth Degree, and was sentenced to two to four years imprisonment. See Exh. C of Respondent's Memorandum, at p. 2.
Petitioner was convicted of possession of cocaine with the intent to sell in violation of New York State Penal Law § 220.16.
Petitioner was convicted of attempted criminal possession of cocaine in violation of New York State Penal Law §§ 110 and 220.09.
In a Notice to Appear dated December 17, 1997, the INS charged the petitioner with removability under Sections 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the Immigration and Nationality Act. 8 U.S.C. § 1227 (a)(2)(A)(iii), 1227(a)(2)(B)(i). Attached to the Notice was a list of organizations and attorneys that provide free legal services. Id. at 2. On February 10, 1998, the petitioner appeared before Immigration Judge Joseph Miller [hereinafter "I.J."] without counsel. The I.J. granted the petitioner's request for an adjournment to find counsel. Id. at 3. Additional adjournments were granted on March 10 and April 10, 1999.
8 U.S.C. § 1227(a)(2)(A)(iii) provides that "any alien who is convicted of an aggravated felony at any time after admission is deportable."
8 U.S.C. § 1227(a)(2)(B)(i) provides that "any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the Unites States, or a foreign country relating to a controlled substance (as defined in section 902 of Title 21), other than a single offense involving possession for one`s own use of 30 grams or less of marijuana, is deportable."
On May 15, 1999, I.J. Miller denied the petitioner's request for another adjournment, finding that petitioner had been given reasonable time to find an attorney. Id. at 3. An order for deportation was issued on the grounds that the petitioner's 1986 conviction is an aggravated felony under the current law. Id. at 4. The I.J. noted that, even if it were not, the petitioner's two convictions for cocaine possession together would be considered an aggravated felony. The I.J. further found that the petitioner did not qualify for cancellation of removal, political asylum, adjustment of status or withholding or suspension of deportation. Id. at 4-5.
Petitioner appealed to the Board of Immigration Appeals [hereinafter "B.I.A."], claiming that the order for deportation should be vacated because 1) he was denied assistance of counsel during the deportation proceeding; 2) that the Illegal Immigration Reform and Immigrant Responsibility Act [hereinafter "IIRIRA"] was wrongfully applied to a conviction that occurred prior to enactment of the IIRIRA; 3) that he was improperly denied "adjustment status" and/or waiver of deportation; and 4) that the Immigration Judge was not fair and impartial. In a written decision, the B.I.A. denied the petitioner's appeal, finding him removable as charged and ineligible for relief from removal. See Exh. D of Respondent's Memorandum of Law.
Petitioner raises the same four grounds for relief in the habeas corpus petition as he did on appeal to the B.I.A. Respondent filed a motion to dismiss solely on jurisdiction grounds, arguing that the IIRIRA bars review in district courts of all final orders of removal from the Board of Immigration Appeals. Respondent submits that the petitioner's only avenue of review is in the Second Circuit Court of Appeals. See Respondent's Memorandum in Support of Motion to Dismiss, at 2. This court does not agree.
2. Federal Court Jurisdiction to Review Habeas Corpus Petitions Under the IIRIRA
In 1996, Congress enacted two bills that "were clearly meant to constrict the availability of judicial review of deportation orders against criminal aliens." Henderson v. INS, 157 F.3d 106, 118 (2d Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1141, 143 L.Ed.2d 209 (1999). The Anti-terrorism and Effective Death Penalty Act [hereinafter "AEDPA"] took effect on April 24, 1996, and the IIRIRA took effect on September 30, 1996. Under the IIRIRA, judicial review of removal proceedings initiated after April 1, 1997, is governed by 8 U.S.C. § 1252. Since the INS instituted removal proceedings after the IIRIRA's effective date, IIRIRA's permanent provisions apply.
Judicial review of removal orders against criminal aliens is governed by 8 U.S.C. § 1252(a)(2)(C), which provides that:
Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in Section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by Section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by Section 1227(a)(2)(A)(i) of this title.
In addition, Section 1252(g) provides that:
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
Thus, the 1996 amendments "repealed the jurisdiction a court of appeals formerly had over petitions for review filed by aliens convicted of [certain criminal offenses]." Henderson v. I.N.S., 157 F.3d at 118 (quoting Hincapie-Nieto, 92 F.3d 27, 28 (2d Cir. 1996)). The Second Circuit has held that repeal of this jurisdiction "suffers from no constitutional infirmity because the courts retain habeas jurisdiction under 28 U.S.C. § 2241. Henderson v. I.N.S., 157 F.3d at 118 (citing Jean-Baptiste v. Reno, 144 F.3d 212, 220 (2d Cir. 1998), reh'g denied, 175 F.3d 226 (2d Cir. 1999)). Although there is disagreement on this point among the Court of Appeals, the controlling law in this Circuit is that habeas corpus review pursuant to 28 U.S.C. § 2241 survives the amendments to the INA enacted by the Immigration Reform Act. See Henderson v. INS, 157 F.3d at 122; Jean-Baptiste v. Reno, 144 F.3d at 220. See also, Pottinger v. Reno, 51 F. Supp.2d 349, 356 (E.D.N.Y. 1999). In Jean-Baptiste v. Reno, 144 F.3d at 219, the Second Circuit concluded that:
In Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), the Supreme Court noted disagreement on this point, but did not decide the habeas question. Id. at 942, n. 7 (citations omitted). Respondent, however, argues that the decision in AADC reaffirms the principle that all aliens under final orders of removal may only seek judicial review in the court of appeals. Respondent submits that AADC, rather than Henderson, is controlling because this case is a "removal case and not a deportation case." See Respondent's Memorandum of Law at p. 3, n. 1. In AADC, however, resident aliens complained that they were being targeted for deportation because of their political views, and brought suit in the Court of Appeals challenging their deportation on selective enforcement grounds. The Supreme Court held that the aliens' suit was barred pursuant to 8 U.S.C. § 1252(g), which limits review of the Attorney General's decision "to commence proceedings, adjudicate cases, and execute removal orders". Id. at 945 ("Respondent's challenge to the Attorney General's decision to "commence proceedings" against them falls squarely within § 1252(g) [. . .]). The Supreme Court did not address whether habeas corpus is precluded as a means of challenging statutory interpretations in final deportation orders for which direct review is not available.
This court notes that the Supreme Court denied certiorari in Henderson on March 8, 1999, just days after its February 24, 1999, decision in AADC.
[n]othing in the language of either the Anti-terrorism Act or the Immigration Reform Act suggests that Congress expressly repealed § 2241, limited its scope, or eliminated the jurisdiction of the district courts under that statute to entertain petitioners seeking writs of habeas corpus. Those two Acts therefore do not specifically exclude habeas review in deportation cases under § 2241, and repeal by implication of the right to petition for habeas corpus relief is disfavored. See Felker v. Turpin, 518 U.S. 651, 659-661, 116 S.Ct. 2333, 2338, 135 L.Ed.2d 827 (1996) (discussing Ex Parte Yerger, 75 U.S. 85, 8 Wall. 85, 105, 19 L.Ed. 332 (1868), and upholding the Supreme Court's authority to entertain a petition for a writ of habeas corpus). Thus, in the absence of language affirmatively and clearly eliminating habeas review, we presume Congress did not aim to bar federal courts' habeas jurisdiction pursuant to § 2241.
The federal courts have jurisdiction under 28 U.S.C. § 2241 to grant habeas corpus relief to aliens when they are "in custody in violation of the Constitution or laws of the United States." Henderson v. I.N.S., 157 F.3d at 122 (citing 28 U.S.C. § 2241). Though the Court acknowledged that "not every statutory claim that an alien might raise is cognizable on habeas," it held that those claims "affecting the substantial rights of aliens of the sort that the courts have secularly enforced — in the face of statutes seeking to limit judicial jurisdiction to the fullest extent constitutionally possible surely are." Id. The Second Circuit indicated that its decision "was premised on the notion that § 2241 is constitutionally required only where the immigration laws have been interpreted to bar other forms of judicial review." Id. at 122 (citing Jean-Baptiste, 144 F.3d at 218).
In this petition, the petitioner raises four claims for habeas corpus relief: 1) that he was denied an effective opportunity to secure legal representation and was forced to proceed pro-se; 2) that he was improperly subjected to provisions of the IIRIRA that are not expressly retroactive, and that retroactivity would violate the Ex Post Facto laws; 3) that he was denied an adjustment status and waiver of deportation based on provisions of the IIRIRA that are not retroactive; and 4) that the Immigration Judge was not fair and impartial. Without deciding the merits of the petitioner's claims, this court finds that the petitioner's due process and statutory interpretation questions are within the restricted scope of habeas corpus review still available under the IIRIRA. Thus, the district court has jurisdiction to review the petitioner's claims and the respondent's motion to dismiss on jurisdiction grounds should be denied.
In Ground Two, the petitioner is referring to his 1986 conviction. At issue is the constitutionality of retroactive application of those sections of the IIRIRA mandating deportation of those convicted of aggravated felonies.
Under 8 U.S.C. § 1229b ("cancellation of removal"), the Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien:
1) has been an alien lawfully admitted for permanent residence for not less than 5 years;
2) has resided in the United States continuously for 7 years after having been admitted in any status; and,
3) has not been convicted of any aggravated felony.
In Pottinger v. Reno, 51 F. Supp.2d 349 (E.D.N.Y. 1999), the District Court denied retroactivity of Section 440(d) of AEDPA. This section preceded the enactment of the IIRIRA ( 8 U.S.C. § 1229b), and excluded aliens convicted of a broad category of crimes, including aggravated felonies and drug offenses, from humanitarian relief to deportation. The court in Pottinger noted that the IIRIRA had no application to the petitioner's case, as it does not apply to deportation proceedings initiated before April 1, 1997. Id. at 353.
Aliens who have established permanent residence in this country are entitled to assert their constitutional rights. Jean-Baptiste v. Reno, 144 F.3d at 219 (citing INS v. Chadha, 462 U.S. 919, 940-941, 103 S.Ct. 2764, 2778-79, 77 L.Ed.2d 317 (1983). Continuously present resident aliens are entitled to a fair hearing when threatened with deportation, and the court in Jean-Batiste commented that "without the ability to seek a writ of habeas corpus under § 2241, certain lawful permanent residents subject to deportation orders would have no opportunity to address potentially serious constitutional issues." Id. at 219.
Respondent moved to dismiss solely on jurisdiction grounds and did not address the merits of the petitioner's claims.
The Second Circuit has held that aliens convicted of specified criminal offenses who are precluded by the AEDPA and the IIRIRA from seeking direct review of their deportation, exclusion, or removal orders in the courts of appeals, may file habeas petitions in the district courts pursuant to 28 U.S.C. § 2241. Henderson v. INS, 157 F.3d at 130. The Court found that petitioner Navas' claim, that Congress did not intend AEDPA § 440(d) to be applied retroactively, was within the scope of habeas corpus review. Id. See also, Goncalves v. Reno, 144 F.3d 110, 113 (1st Cir. 1998) ("Whether Congress intended to make a particular provision of a statute retroactive is of a type typically resolved by the Courts."), cert. denied, Reno v. Pereira Goncalves, 119 S.Ct. 1140, 143 L.Ed.2d 208 (March 8, 1999). The court noted that reviewing the retroactivity of AEDPA § 440 which restricted discretionary relief, was a pure issue of law. Goncalves, 144 F.3d at 113.
This court also recommends that respondent's request for the proceedings to be transferred to the Second Circuit Court of Appeals be denied. The IIRIRA has eliminated this avenue of relief for individuals deportable for certain criminal convictions, such as the petitioner's. 8 U.S.C. § 1252(a)(2)(C). Since the IIRIRA bars criminal aliens from seeking direct review in the Court of Appeals, this court recommends that respondent's motion to transfer the case be denied.
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the respondents' motion to dismiss be DENIED, and it is further
RECOMMENDED, that if this Report-Recommendation is adopted by the District Court, respondent shall have SIXTY (60) DAYS from the date of the District Court's Order to file and serve an answer to the petition.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have TEN (10) DAYS within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN (10) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).