Opinion
02-CV-3309 (JG)
March 28, 2003
ALEXIS MILTON EDWARDS, Leesport, Pennsylvania, Petitioner Pro Se
ROSLYNN R. MAUSKOPF, United States Attorney, Eastern District of New York, Brooklyn, New York Steven J. Kim, Assistant United States Attorney Attorneys for Respondent
MEMORANDUM AND ORDER
Petitioner Alexis Milton seeks a writ of habeas corpus on the grounds that (1) he is eligible for a waiver of deportability under § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c) (1994) (repealed 1996), and (2) his mandatory detention under INA § 236(c), 8 U.S.C. § 1226(c), is unconstitutional. For the reasons set forth below, the petition is denied.
BACKGROUND
A. The Statutory Framework
1. Section 212(c)
On April 24, 1996, President Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat 1214 (1996) ("AEDPA"), which made certain changes to the IN A regarding deportability. For the purposes of this petition, AEDPA's relevant changes included the elimination of discretionary waivers of deportation for those aliens deportable by reason of having committed, inter alia, an aggravated felony or a drug offense. See AEDPA § 440(d) (amending old INA § 212(c), 8 U.S.C. § 1182(c)).
This scheme was quickly amended once again on September 30, 1996, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). IIRIRA § 304(b) deleted § 212(c) of the old INA, which, as stated above, granted the Attorney General broad discretion to waive deportation, and replaced it with a new provision entitled "Cancellation of removal." IIRIRA § 304(a), 8 U.S.C. § 1229b. The new provision authorizes the Attorney General to cancel removal (the new term encompassing both deportation and exclusion) for aliens meeting certain criteria.
The criteria are (1) permanent resident status for at least five years; (2) continuous residence in the United States for seven years; and (3) not having been convicted of an aggravated felony.
In Matter of Soriano, 211 N Dec. 516, 534 (A.G. Feb. 21, 1997), the Attorney General held that AEDPA's amendment to § 212(c) applied to proceedings in which an application for relief under § 212(c) was pending when AEDPA was signed into law. The Second Circuit rejected such an application of AEDPA in Henderson v. INS, holding that AEDPA's limitation on the availability of § 212(c) relief did not apply retroactively to aliens whose deportation or exclusion proceedings were pending on the date of its enactment, April 24, 1996. 157 F.3d 106, 130 (2d Cir. 1998). Three years later, the Supreme Court held that applying AEDPA to an alien who would have been eligible for § 212(c) relief under the law in effect at the time of his plea of guilty would impose an impermissible retroactive effect. INS v. St. Cyr, 533 U.S. 289, 315 (2001). So as not to disrupt the "settled expectations" of those who decided to plead guilty in the face of possible deportation, the Court "h[e]ld 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.
2. Section 236(c)
Under INA § 236(c), Congress mandated the detention of certain criminal aliens during the pendency of their administrative deportation proceedings. 8 U.S.C. § 1226(c)(1)(B). After these aliens are subject to a final deportation order, their detention is governed by INA § 241, 8 U.S.C, § 1231, which affords the Attorney General a ninety-day period (the "removal period") to accomplish removal. Once the removal period expires, the INA requires periodic custody status reviews, which offer the alien the opportunity to demonstrate suitability for release. 8C.F.R. § 241A
B. Facts
Edwards is a thirty-five-year old native and citizen of Trinidad who was admitted to the United States as a lawful permanent resident on January 18, 1986. On October 26, 1992, he was convicted on his plea of guilty to attempted criminal sale of a controlled substance in the third degree, in violation of N.Y. Penal Law §§ 110 and 220.39(1), for which he was sentenced to forty-five days imprisonment and five years probation. On January 25, 1993, Edwards was convicted again, upon a plea of guilty, of criminal sale of a controlled substance in (he second degree, in violation of N.Y. Penal Law § 220.41(1), for which he was sentenced to five years to life imprisonment. He was committed to the New York State Department of Correctional Services ("NYDOCS") on March 3, 1993 with 204 days of jail time credit, having been detained since his arrest on August 4, 1992. Edwards was paroled to the Immigration and Naturalization Service ("INS") on August 11, 1997, and subsequently released on an immigration bond. He was then re-committed to NYDOCS on July 27, 2000 for violating the conditions of his parole. He was again paroled into the custody of the INS on October 18, 2000, and released on an immigration bond on March 6, 2001. On May 15, 2002, after he had breached his bond, the INS took Edwards into custody.
C. Procedural History
On June 22, 1995, the INS issued an Order to Show Cause, charging Edwards with being deportable from the United States for having been convicted of an aggravated felony, pursuant to what is now INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), and for having been convicted of a violation of a law relating to a controlled substance, pursuant to what is now INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227 (a)(2)(B)(i). On May 23, 1996, an immigration judge granted Edwards a waiver of deportability under § 212(c). The INS appealed from that decision to the Board of Immigration Appeals ("BIA"). On May 21, 1997, the BIA found Edwards ineligible for a waiver of deportability under § 212(c) pursuant to AEDPA § 440(d) and the Attorney General's decision in Soriano, On July 30, 1997, the BIA denied Edwards' motion to reconsider the BIA's decision and affirmed the finding of Edwards' deportability. On January 4, 2001, however, the BIA reopened Edwards' deportation proceedings for the purposes of considering his eligibility for relief under § 212(c) in light of the Second Circuit's decision in Henderson, 157 F.3d at 130.
During his reopened deportation proceedings, Edwards, through counsel, conceded that Edwards had served at least five years in prison for an aggravated felony offense. On July 23, 2001, an immigration judge found Edwards ineligible for relief under § 212(c) because he had served at least five years in prison for his conviction of criminal sale of a controlled substance in the second degree (based upon the combined length of Edwards' initial period of incarceration on this offense and the time served for his parole violation).
As stated above, the INS took Edwards into custody on May 15, 2002, after he had breached his immigration bond. Edwards was scheduled for a review of his custody status pursuant to 8 C.F.R. § 241.4 on September 30, 2002.
On June 5, 2002, Edwards filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, asserting that he is eligible for a waiver of deportability under § 212(c). The petition was assigned to Judge Raggi. On June 24, 2002, Edwards filed a supplemental brief in support of his petition. On August 21, 2002, Edwards filed a "Motion For Bond and Custody Redetermination and Challenge of Mandatory Detention," asserting that his mandatory detention under INA § 236(c), 8 U.S.C. § 1226(c), is unconstitutional. On August 27, 2002, Edwards filed a "Motion to Amend Habeas Corpus for Summary Judgment" and a letter in support of his motion.
On December 17, 2002, the petition was reassigned to me. On December 22, 2002, Edwards filed a "Motion to Order the Release of Petitioner on Bail," asserting that he was entitled to be released on bail pending a decision on his habeas petition. On March 20, 2003, Edwards submitted an application for preliminary injunctive relief, seeking his release on the ground that he is entitled to § 212(c) relief.
DISCUSSION
A. Edwards' Claim For § 212fc) Relief
Under the Supreme Court's decision in St. Cyr, Edwards is eligible for a § 212(c) waiver if (1) he pled guilty prior to the enactment of AEDPA and (2) he is eligible for such a waiver under the law as it existed at the time of his plea. 533 U.S. at 326. When Edwards pled guilty to criminal sale of a controlled substance in the second degree, an aggravated felony, a § 212(c) waiver was unavailable to an alien who had "been convicted of one or more aggravated felonies and ha[d] served for such felony or felonies a term of imprisonment of at least five years." 8 U.S.C, § 1182(c)(1991). Edwards argues that he is entitled to § 212(c) relief because when an immigration judge granted his request for such relief on May 23, 1996, he had served less than five years in prison. It was the additional time he served on that offense (for violating his parole) while his deportation proceedings were pending that put him over the five-year threshold.
The central issue raised by this claim is whether in calculating the number of years spent in prison for purposes of § 212(c) relief, the time spent in prison while administrative appeals are pending is included. Based on the Second Circuit's decision in Buitrago-Cuesta v. INS, I find that it must be:
Changes in law or fact occurring during the pendency of administrative appeals must be taken into account. See Anderson v. McElroy, 953 F.2d 803,806 (2d Cir. 1992) . . . In Anderson, the court stated that "[w]hile Anderson's appeal to the BIA was pending . . . he achieved seven continuous years as a lawful permanent resident and became eligible for § 212(c) relief." Id. 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) relief7 F.3d 291, 296 (2d Cir. at 1993) (emphasis added); see also Madera-Lora v. McElroy, No. 02 Civ. 0309, 2002 WL 1766450, at *2 (S.D.N.Y. July 31, 2002) (finding petitioner ineligible for § 212(c) relief under the five-year bar even though he had not accrued five years when his § 212(c) application was initially denied pursuant to the Soriano decision); Gomes v. Ashcroft No. 02 Civ. 1508, 2002 WL 31501234, at *2 (1st Cir. 2002) (holding that time served in prison for purposes of § 212(c) includes time served during the course of administrative appeals). But cf Greenidge v. INS. 204 F. Supp.2d 594, 598 (S.D.N.Y. 2001).
In Greenidge, Judge Marrero, adopting the recommendation of Magistrate Judge Pitman, remanded the petitioner's § 212(c) application for further consideration of whether petitioner's prison time, for the purposes of his § 212(c) eligibility, should be tolled from the immigration judge's decision that he was ineligible for § 212(c) relief based on Soriano. 204 F. Supp.2d at 598. The court inGreenidge found that Buitrago-Cuesta did not mandate that the five-year clock continue to run where a decision that subsequently proved erroneous extended the administrative proceedings beyond the five-year mark. Id. There is no language in Buitrago-Cuesta carving out such an exception. To the contrary, Buitrago-Cuesta requires all changes in fact and law during the pendency of the administrative appeals to be taken into account. 7 F.3d at 296. As the government notes, during the pendency of Edwards' administrative appeal, two changes affected his eligibility for § 212(c) relief. First, the Supreme Court declared that AEDPA and IIRIRA did not apply retroactively to guilty pleas entered prior to their enactment. Second, Edwards accrued more than five years imprisonment. Under Buitrago-Cuesta, he is subject to the consequences of both changes, beneficial and adverse.
Accordingly, Edwards is not entitled to § 212(c) relief because he served more than five years in prison.
B. Mandatory Detention Claim
Edwards attacks his mandatory detention pursuant to IN A § 236(c) as unconstitutional. However, Edwards is no longer subject to mandatory detention under that provision because the BIA issued his final deportation order on November 30, 2001. When the INS took Edwards into custody on May 15, 2002, after he had breached his immigration bond, Edwards was detained pursuant to IN A § 241. Therefore, Edwards' claim that IN A § 236(c) is unconstitutional is moot.
Edwards claims that he should be released on bail pursuant to the Second Circuit's decision in Mapp v. Reno, 241 F.3d 221, 231 (2d Cir. 2001). However, Mapp affords Edwards no relief, for two independent reasons. First, as explained above, Edwards has no substantial claim for habeas relief. See 241 F.3d at 230 ("a court considering a habeas petitioner's fitness for bail must inquire into whether the habeas petition raises substantial claims and whether extraordinary circumstances exist that make the grant of bail necessary to make the habeas petition remedy effective"). Second, the grant of bail is not required to make a § 212(c) hearing effective. See id.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is denied.So Ordered.