Opinion
01 Civ. 6228 (DLC)
February 7, 2003
For Petitioner: Mario Leroy Davis, Pro Se Pike County Jail, Hawley, PA.
For Respondents: Megan L. Brackney, Assistant United States Attorney, United States Attorney's Office, New York, NY.
OPINION AND ORDER
Petitioner Mario Leroy Davis ("Davis") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging an order of removal entered against him by the Immigration and Naturalization Service ("INS" or "Agency"). At issue here is Davis's eligibility for a discretionary waiver of an order of deportation. Davis's eligibility, and hence his petition, depends on the determination of whether the INS must compute the time Davis has served in prison on a conviction for an aggravated felony as of the date the INS commenced deportation proceedings against Davis, or as the INS contends, it may compute that time as of the date of its decision on deportation that Davis is challenging. For the reasons that follow, the latter date may be used and Davis's petition must be denied.
Background
Davis, a native and citizen of Jamaica, has been a lawful permanent resident of the United States since October 31, 1984. In 1991, Davis pleaded guilty to robbery in the third degree and to grand larceny in the fourth degree. He was sentenced to two nine month sentences, to run concurrently. In 1994, Davis pleaded guilty to attempted robbery in the second degree and was sentenced to two and one half to five years' imprisonment. In 1995, Davis pleaded guilty to attempted robbery in the first degree. He was sentenced to four to eight years' imprisonment. Davis was received into the custody of the New York State Department of Corrections on August 16, 1995, and was credited with 185 days of time served.
On March 15, 1996, the INS served Davis with an Order to Show Cause why he should not be deported based on his criminal convictions. As Davis's case progressed through the administrative agency, the laws governing the deportation of aliens convicted of felonies were transformed. Below the background to this petition follows in three parts: (1) Davis's first series of INS proceedings; (2) the changes to the immigration laws; and (3) Davis's second series of INS proceedings.
Davis's INS Proceedings: Part I
On March 15, 1996, the INS commenced deportation proceedings against Davis by serving him with an Order to Show Cause and Notice of Hearing. The INS based its initial Order to Show Cause on Davis's 1995 conviction. The Agency charged Davis as deportable as an alien convicted of an aggravated felony pursuant to Section 241(a)(2)(A) (iii) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1251 (a)(2)(A) (iii) (1994), and as an alien convicted of a firearms offense pursuant to Section 241(a)(2)(C) of the INA, 8 U.S.C. § 1251 (a)(2)(C) (1994). The INS later served two additional charges of deportability. On October 30, 1996, the INS withdrew the charges based on the 1995 conviction, and stated that Davis was deportable because of his 1991 convictions as an alien who had been convicted of two crimes of moral turpitude not arising out of a single scheme of criminal conduct, pursuant to Section 241(a)(2)(A) (ii) of the INA, 8 U.S.C. § 1251 (a)(2)(A) (ii) (1994). On November 21, 1996, the INS served another notice of charges of deportability, this time based on Davis's 1994 conviction.
On October 23, 1997, after a hearing in which Davis appeared with an accredited immigration representative, the Immigration Judge ("IJ") found that Davis was deportable on two separate grounds: (1) as an alien who had committed two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct; and (2) as an alien who had been convicted of an aggravated felony.
Davis made an oral application to the IJ, seeking a waiver of deportation pursuant to Section 212(c) of the INA, 8 U.S.C. § 1182 (c) (1994) ("Section 212(c)"). The IJ denied Davis's application. Specifically, the IJ found that Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 et seq. (1996), barred aliens who had been convicted of an aggravated felony for which they had served more than one year of imprisonment from receiving relief under Section 212(c). Because Davis had served more than a year on an aggravated felony conviction, the IJ, following the INS's interpretation of the statute, found Davis ineligible for a Section 212(c) waiver.
On October 23, 1997, Davis appealed the IJ's decision to the Board of Immigration Appeals (the "BIA"). He argued that the IJ had erred in applying Section 440(d) of AEDPA retroactively. He claimed that since he would have been eligible for relief under Section 212(c) at the time of his guilty plea, he could not be subject to retroactive application of the new AEDPA standards. On May 4, 1998, the BIA dismissed Davis's appeal. Davis then filed his first petition for a writ of habeas corpus and moved to reopen the BIA appeal.
Statutory History
Prior to the enactment of AEDPA, aliens like Davis who had been convicted of an aggravated felony but had served less than five years in prison were eligible to apply to the Attorney General (or his designates, the IJ and the BIA) for a waiver of deportation under Section 212(c). Section 212(c) provided:
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 without regard to [various grounds for exclusion]. . . . The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least five years.8 U.S.C. § 1182 (c) (1994) (repealed by IIRIRA § 304(b), 110 Stat. at 3009-597, Sept. 30, 1996) (emphasis supplied). Although the text of the section refers only to "exclusion," the Second Circuit long has held that Section 212(c) applies equally to deportation and exclusion proceedings. See Buitrago-Cuesta v. INS, 7 F.3d 291, 292 (2d Cir. 1993);Francis v. INS, 532 F.2d 268, 272-73 (2d Cir. 1976); see also INS v. St. Cyr, 533 U.S. 289, 295 (2001). Thus, under Section 212(c), once the INS entered an order of deportation against an alien, he could petition the Agency to exercise its discretion to waive the deportation. In considering the waiver application, the IJ or BIA weighed "social and humane considerations" such as the alien's family ties to the United States, lengthy residence in the United States and the hardship of deportation against the factors favoring deportation. See Lovell v. INS, 52 F.3d 458, 461 (2d Cir. 1995). Until 1996, if the Agency declined to waive deportation, the alien could file a petition for review in the court of appeals. See 8 U.S.C. § 1105a(a) (1994) (repealed by IIRIRA § 306(b), 110 Stat. at 3009-612, Sept. 30, 1996).
In 1996, while Davis's deportation proceedings were pending before the INS, Congress enacted two laws that drastically limited the ability of convicted felons to obtain discretionary waiver of deportation orders. On April 24, 1996, Congress enacted AEDPA. Section 440(d) of AEDPA limited the availability of Section 212(c) relief by amending the section to provide that a waiver could not be granted to any alien convicted of certain enumerated offenses, including any aggravated felony or two or more crimes of moral turpitude not arising from a single scheme of criminal conduct. See AEDPA § 440(d), 110 Stat. at 1277, INA § 241, codified at 8 U.S.C. § 1251 (1994) and renumbered by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 et seq. (1996), as INA § 237, codified at 8 U.S.C. § 1227.
In September 1996, Congress enacted IIRIRA. IIRIRA repealed Section 212(c) in its entirety. See § 304(b), 110 Stat. 3009-597. Although the Attorney General retained authority to cancel removal for a narrow class of individuals, no one "convicted of any aggravated felony" is eligible for this discretionary relief. See 8 U.S.C. § 1229b(a)(3) (1994 ed., Supp. V); see also St. Cyr, 533 U.S. at 297. The Attorney General, and the INS, took the position that the IIRIRA and AEDPA amendments retroactively repealed Section 212(c), completely extinguishing their ability to issue Section 212(c) waivers to aliens previously convicted of aggravated felonies. See St. Cyr, 533 U.S. at 297.
Under IIRIRA, exclusion and deportation proceedings are now referred to as "removal" proceedings.
Numerous litigants contested the INS's retroactive application of AEDPA and IIRIRA. In Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), the Second Circuit held that Section 440(d) of AEDPA does not apply retroactively to limit the availability of a Section 212(c) waiver for aliens whose deportation or exclusion proceedings were pending on the date of AEDPA's enactment. Id. at 130. The Supreme Court reached a parallel conclusion in 2001, rejecting the INS's interpretation and finding that the IIRIRA amendments to Section 212(c) did not apply retroactively. 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."St. Cyr, 533 U.S. at 326.
Davis's INS Proceedings: Part II
Proceedings in Davis's 1998 habeas petition had been stayed pending the Second Circuit's decision in Henderson. On July 19, 1999, this Court vacated the deportation order and remanded Davis's case to the BIA for proceedings consistent with the Henderson opinion.
On September 9, 1999, the BIA remanded Davis's case to the IJ, who commenced proceedings on December 14, 1999 to determine Davis's eligibility for a Section 212(c) waiver. The proceedings were adjourned until February 29, 2000, to permit Davis to assemble evidence and to make a written submission, and to allow time for the INS to prepare and submit its computation of the time Davis had spent in custody. On February 29, 2000, the proceedings reconvened. The INS stated that Davis had been in the custody of the New York State Department of Correctional Services ("DOCS") since August 16, 1995. In addition, the INS stated that Davis had served 185 days prior to sentencing. In total, argued the INS, Davis had been incarcerated for more than five years and was thus ineligible for Section 212(c) relief. Davis argued that he had appealed his 1995 conviction, and that the direct appeal was still pending. Since the IJ and the parties did not have documentation of the status of the appeal, the IJ adjourned the matter until April 12, 2000.
On April 12, 2000, the proceedings reconvened. The INS submitted evidence that Davis's 1995 conviction had been affirmed. The IJ then concluded that Davis had spent more than five years in custody and was thus ineligible for a waiver of deportation under Section 212(c). The IJ ordered Davis removed to Jamaica. Davis appealed to the BIA. On November 2, 2000, the BIA dismissed his appeal.
Davis filed this petition for a writ of habeas corpus on July 11, 2001. On August 8, 2002, Davis's deportation proceedings were stayed by order of this Court. On October 2, 2002, Magistrate Judge Pitman issued a Report recommending that the petition be granted for the limited purpose of remanding the matter to the INS for a determination on the merits of Davis's application for Section 212(c) relief, without prejudice to respondent's contention that Davis is ineligible for such relief. In all other respects, Magistrate Judge Pitman recommended that the petition be denied. Respondent submitted timely objections to the Report, and on November 6, 2002, Magistrate Judge Pitman issued an Amended Report addressing respondent's objections, but making the same recommendation.
Discussion
Davis remained in prison throughout the time he successfully litigated the continuing availability of a Section 212(c) waiver for aliens whose deportation proceedings were on-going at the time AEDPA was enacted. By the time the IJ issued an opinion applying the correct interpretation of the law regarding AEDPA's retroactivity, he had been in prison serving a sentence imposed for an aggravated felony for more than five years, and no longer qualified for relief under Section 212(c). Davis argues that the computation of his time spent in prison should be made no later than the date that he first appeared before the IJ in 1997, rather than the date of his most recent appearance in 2000 when the IJ finally ordered his removal. Second Circuit precedent and practical considerations, however, require that the IJ compute the time snort in prison as of the date the IJ issues the ruling. Consequently, Davis's petition must be denied.
A. Standard of Review
When reviewing the Magistrate Judge's Amended Report, this Court "may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636 (b)(1)(C) (1993). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted); see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). The Court shall make a de novo determination of those portions of the Report to which objection is made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Petitioner raises no objections to the Amended Report. Respondent objects to the Magistrate Judge's treatment of petitioner's Section 212(c) claim. Respondent argues that the Amended Report is inconsistent with Second Circuit precedent requiring that the time an alien serves in prison during administrative proceedings should be considered when determining eligibility for Section 212(c) waiver. Respondent argues that when his time in prison is correctly calculated, Davis is ineligible for Section 212(c) relief.
The respondent submitted its objections six days late and Davis has asked that the objections be disregarded as untimely. Because the remand recommendation constitutes "clear error" it is unnecessary to address the issue of untimeliness.
B. Jurisdiction
Together, AEDPA and IIRIRA limit habeas review of deportation orders to review under Title 28, United States Code, Section 2241 ("Section 2241"). St. Cyr, 533 U.S. at 297; see also Henderson, 157 F.3d at 117;Jean-Baptiste v. Reno, 144 F.3d 212, 219-20 (2d Cir. 1998). Federal habeas jurisdiction under Section 2241 includes jurisdiction to review "purely legal statutory and constitutional claims," Calcano-Martinez v. INS, 232 F.3d 328, 342 (2d Cir. 2000); see Henderson, 157 F.3d at 122, but it does not include jurisdiction to review discretionary determinations by the INS. Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001). Davis has exhausted his administrative appeals, and seeks habeas review pursuant to Section 2241.
C. Section 212(c)
At the time of Davis's guilty plea and initial INS proceedings, he was eligible to apply for Section 212(c) relief. He had been a lawful permanent resident since 1984 and, although he had been convicted of an aggravated felony, he had served less than five years in prison. When the IJ first heard Davis's case, however, it was during the two-year window before Henderson, and thus, during a period when the INS was applying AEDPA and IIRIRA retroactively. The INS interpreted the statutes to bar its ability to grant Section 212(c) relief for aliens who had pled guilty prior to the 1996 amendments, but whose cases were not decided until after the laws took effect. As described above, the Second Circuit and then the Supreme Court invalidated this approach. Instead, the courts concluded, Section 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."St. Cyr, 533 U.S. at 326. Davis's case was remanded from this Court to the BIA in July 1999, for proceedings consistent with Henderson.
Considering Davis's request for waiver the second time, the IJ correctly assessed Davis's eligibility for Section 212(c) in light of the facts as they then stood. The IJ considered all of the time Davis had spent in prison, including the time from May 1998, when the BIA dismissed his appeal from the initial order of deportation, until April 12, 2000, when the IJ issued his decision. In doing so, the IJ complied with Second Circuit precedent that requires that "changes in law or fact occurring during the pendency of administrative appeals must be taken into account." Buitrago-Cuesta v. INS, 7 F.3d 291, 296 (2d Cir. 1993). InBuitrago-Cuesta, the Second Circuit considered the plight of an alien who had been imprisoned for less than five years at the time he applied for relief, but had served at least five years by the time of the BIA's decision. There, the Court held: "Just as we credit aliens for time spent in the country while an appeal is pending before the BIA so that they are eligible for § 212(c) relief, we will also consider the time aliens spend in prison during the course of a hearing for purposes of rendering them ineligible for § 212(c) relief." Id.; see also Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir. 1992) (requiring the BIA to evaluate whether Section 212(c) relief is available to an alien who achieved the requisite number of years of continuous domicile in this country while his administrative appeal to the BIA was pending).
Other courts in this Circuit also have applied Buitrago-Cuesta to bar Section 212(c) relief for aliens who accrued five years of imprisonment while their INS proceedings were pending. See Brown v. United States, No. 01 Civ. 9864 (JSM), 2002 WL 1836752, at *2 (S.D.N.Y. Aug. 12, 2002);Cruz v. United States Dept. of Justice, No. 00 Civ. 0919 (DAB), 2002 WL 986861, at *5 (S.D.N.Y. May 14, 2002); Madera-Lora v. McElroy, No. 02 Civ. 0309 (NRB), 2002 WL 1766450, at *2 S.D.N.Y. July 31, 2002). Davis, the petitioner in Madera-Lora accrued five years imprisonment after the BIA dismissed his initial appeal and while Henderson and St. Cyr were progressing through the courts. See Madera-Lora, 2002 WL 1766450, at *1. Madera-Lora petitioned the BIA to reopen his case for consideration in light of the Supreme Court's decision in St. Cyr. Id. The BIA refused, finding that Madera-Lora had served five years' imprisonment for an aggravated felony and was thus ineligible for Section 212(c) relief. Id. When Madera-Lora challenged the BIA's decision, The Honorable Naomi R. Buchwald applied Buitrago-Cuesta and denied Madera-Lora's habeas petition. Madera-Lora, 2002 WL 1766450, at *2.
Although its procedural history makes Davis's case a compelling one, he is nonetheless among the class of aliens that Congress intended to bar from receiving discretionary relief under Section 212(c). When compared to IIRIRA's complete ban on a discretionary waiver of deportation for those convicted of aggravated felonies, Section 212(c) sets a relatively lenient standard. Even for Section 212(c), however, Congress established that some crimes were so serious that discretionary relief was not warranted. In Giusto v. I.N.S., 9 F.3d 8 (2d Cir. 1993), the Second Circuit concluded that Congress chose the five-year threshold in order to bar those convicted of "serious crimes" from obtaining discretionary relief from deportation. Id. at 10 (citation omitted). The Court found that the five-year bar "was plainly part of an effort to broaden the list of serious crimes, conviction of which results in various disabilities and preclusion of benefits under the Immigration and Nationality Act."Id. (citation omitted). Davis's lengthy prison term for an aggravated felony precludes him from eligibility to apply for discretionary relief.
D. Estoppel
Davis claimed that the INS should be estopped from asserting the five-year bar because the Agency's delays — presumably including the delays caused by the erroneous retroactive application of AEDPA — caused five years to pass before a final deportation order. The Report rejects Davis's claim and concludes that equitable estoppel is not available. Because this claim nonetheless may have weighed in the Magistrate Judge's decision to recommend deferring the question of Section 212(c) eligibility and remanding for a hearing on the merits of Davis's Section 212(c) request, it is appropriate to address it here.
Equitable estoppel "is not available against the government except in the most serious of circumstances, and is applied with the utmost caution and restraint." Rojas-Reyes v. INS, 235 F.3d 115, 126 (2d Cir. 2000) (citations omitted). Equitable estoppel will not be applied unless the petitioner "can establish both that the Government made a misrepresentation upon which the party reasonably and detrimentally relied and that the Government engaged in affirmative misconduct." City of New York v. Shalala, 34 F.3d 1161, 1168 (2d Cir. 1994); see also Rojas-Reyes, 235 F.3d at 126; Drozd v. INS, 155 F.3d 81, 90 (2d Cir. 1998). Davis cannot meet this high burden.
Davis has not alleged any misrepresentation upon which he relied, nor has he identified any affirmative misconduct on the part of the INS. Although the IJ adjourned Davis's proceeding several times, he did so in order to allow Davis time to obtain evidence and to make a written submission, and to allow the parties to clarify the record regarding Davis's appeals from his criminal convictions. Such delays do not amount to affirmative misconduct.
Even the IJ's erroneous retroactive application of AEDPA/IIRIRA to bar Davis's initial application for a Section 212(c) waiver does not amount to the type of affirmative misconduct that warrants the application of equitable estoppel. See Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir. 1976) (affirmative misconduct where INS official's failure to provide an affirmatively required warning was "unjust" and "seriously prejudic[ed]" petitioner); Cook v. Pension Benefit Guarantee Corp., 652 F. Supp. 1085, 1091 (S.D.N.Y. 1987) (Walker, J.) ("A good faith, albeit erroneous, decision is not equivalent to affirmative misconduct."). The IJ and the BIA treated Davis's case according to the interpretation of AEDPA and IIRIRA adopted by the Attorney General and applied throughout the INS. See St. Cyr, 533 U.S. at 297. Whether or not the 1996 amendments to the INA could be applied retroactively was a complicated question of law which the Supreme Court and the Second Circuit eventually addressed at length. See generally id.; Henderson, 157 F.3d 106. The INS's treatment of the question does not amount to the type of affirmative misconduct that warrants estoppel. See Cook, 652 F. Supp. at 1091 (government corporation's evolving "efforts to interpret" statute do not amount to the type of "affirmative misconduct" that warrants equitable estoppel).
Conclusion
For the reasons stated above, Davis's petition for a writ of habeas corpus is denied. I decline to issue a certificate of appealability in this case. Davis has not made a substantial showing of denial of a federal right, and appeal is therefore unwarranted. See Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). In addition, I find, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). It is further ordered that the stay of deportation entered by this Court on August 8, 2002, shall be lifted within thirty days of the date of this Opinion and Order.
SO ORDERED.