Opinion
02 Civ. 250 (JGK).
July 8, 2003.
OPINION AND ORDER
The petitioner, Wilson Familia-Garcia, has filed a petition for a writ of habeas corpus challenging his order of deportation on the ground that the petitioner should have been allowed to seek a discretionary waiver of deportation pursuant to former Section 212(c) of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1182 (c) (repealed by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), § 304(b), Pub.L. No. 104-28, 1996 U.S.C.C.A.N. (110 Stat.) 3009, 3009-597 (1996)). The petitioner claims that he was wrongly denied this relief because Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, 1277 (1996), was applied to him retroactively.
I.
The petitioner, a native and citizen of the Dominican Republic, entered the United States as an immigrant on or about January 15, 1983. (Certified Administrative Record ("R.") at 25, 89, 93.) Familia-Garcia pleaded guilty in the United States District Court for the Southern District of New York to possession with intent to distribute cocaine in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2 and was sentenced on October 5, 1992 to fifty-one months' imprisonment followed by three years' supervised release. (R. at 66-69, 76, 93.) The petitioner also pleaded guilty to violating 18 U.S.C. § 3146(a)(1) and 3146(b)(1)(A)(i) for failing to appear for his arraignment and was sentenced that same day to eighteen months' imprisonment to run consecutively to the fifty-one months he received on the drug violation, as well as three years' supervised release to run concurrently with his other term of supervised release. (R. at 70-73, 76, 93.)
On December 10, 1996 the Immigration and Naturalization Service ("INS") served the petitioner with an order to show cause and notice of hearing at the Federal Correctional Institution at Oakdale, Louisiana. (R. at 95.) The order to show cause charged that Familia Garcia was deportable from the United States pursuant to Section 241(a)(2)(A)(iii) of the INA as an alien who had been convicted of an aggravated felony as defined by Section 101(a) (43) of the Act. (R. at 94.)
Deportation proceedings commenced before an immigration judge ("IJ") in Oakdale, Louisiana but the IJ granted the petitioner's motion for a change of venue to New York on May 29, 1997. (R. at 29-38, 55-56, 60-65, 85-87.) Proceedings began in New York City on December 29, 1997, at which time Familia-Garcia admitted, through counsel, committing the crimes alleged in the order to show cause and conceded deportability. (R. 42-43.) The petitioner also made an oral application for discretionary relief from deportation pursuant to Section 212(c) of the INA. The IJ issued an oral decision at the hearing ordering the petitioner deported and pretermitting his application for Section 212(c) relief under the Attorney General's decision inMatter of Soriano, Int. Dec. No. 3289, 1996 WL 426888 (Att'y Gen. Feb. 21, 1997), which found that Section 440(d) of AEDPA applied to limit the availability of Section 212(c) relief for any aliens who were not already in deportation proceedings on the effective date of AEDPA, April 24, 1996. (R. at 24-28.)
The petitioner appealed to the Board of Immigration Appeals ("BIA"), arguing that the IJ should not have applied AEDPA retroactively to bar relief in his case. (R. at 7-21.) The BIA dismissed the petitioner's appeal on July 28, 1998 on the ground that Section 212(c) relief was no longer available to the petitioner, whose deportation proceedings commenced after the effective date of AEDPA, in view of AEDPA and Matter of Soriano. (R. at 2.) Familia-Garcia filed this petition for a writ of habeas corpus on January 9, 2002.
II.
The petitioner challenges his order of deportation on the ground that he should have been permitted to seek a discretionary waiver of deportation pursuant to former Section 212(c) of the INA. The BIA has affirmed the petitioner's order of deportation, and Familia-Garcia has thus exhausted his administrative remedies and the habeas petition is properly before this Court. In addition, this Court retains jurisdiction under 28 U.S.C. § 2241 to review the legal claims against a final order of deportation raised by an alien subject to deportation by reason of having committed a criminal offense.See INS v. St. Cyr, 533 U.S. 289, 314 (2001) (hereinafter St. Cyr II).
Former 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. . . . [T]his 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 5 years.8 U.S.C. § 1182(c) (1994). Although Section 212(c) by its terms applies to residents returning from temporary departures abroad, it has long been interpreted to apply to lawful permanent residents who have not left the United States but who face deportation. See St. Cyr II, 533 U.S. at 295; Bedoya-Valencia v. INS, 6 F.3d 891, 895-98 (2d Cir. 1993); Francis v. INS, 532 F.3d 268, 273 (2d Cir. 1976); Copes v. McElroy, No. 98 Civ. 2589, 2001 WL 830673, at *3 (S.D.N.Y. July 23, 2001). To qualify for relief under Section 212(c), an alien had to show that the alien was a lawful permanent resident of the United States who had a lawful unrelinquished domicile of seven consecutive years and that the alien had not been convicted of one or more aggravated felonies for which the alien had served a term of imprisonment of at least five years. See 8 U.S.C. § 1182(c); Rankine v. Reno, 319 F.3d 93, 95 (2d Cir. 2003),reh'g denied, Nos. 01-2135, 01-2483, 00-2631, (2d Cir. Apr. 21, 2003); St. Cyr v. INS, 229 F.3d 406, 410 (2d Cir. 2000) (hereinafter St. Cyr I), aff'd, 533 U.S. 289 (2001). If an alien made such a showing, the decision whether to grant relief from deportation was left to the discretion of the Attorney General or his delegates. See 8 U.S.C. § 1182(c); Rankine, 319 F.3d at 95; St. Cyr I, 229 F.3d at 410.
On April 24, 1996 Congress enacted AEDPA and Section 440(d) of the statute precluded aliens who were convicted of committing drug-related crimes or aggravated felonies regardless of the time served in prison from obtaining Section 212(c) relief.See AEDPA § 440(d), 110 Stat. at 1277; St. Cyr I, 229 F.3d at 411. One of Congress's goals in enacting the statute was to increase the number of deportable criminal aliens. See Domond v. INS, 244 F.3d 81, 84 (2d Cir. 2001); St. Cyr I, 229 F.3d at 411. Former Section 212(c) was subsequently repealed by IIRIRA Section 304(b) in 1996 and was replaced by a form of relief entitled "cancellation of removal," codified at 8 U.S.C. § 1229b. IIRIRA, 1996 U.S.C.C.A.N. (110 Stat) at 3009-597;Domond, 244 F.3d at 84.
The petitioner was convicted by a guilty plea prior to the enactment of AEDPA on April 24, 1996. Under St. Cyr II, the petitioner is correct and the IJ should not have applied Section 440(d) to his case and pretermitted Familia-Garcia's application for Section 212(c) relief. In St. Cyr II, the Supreme Court held that 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 II, 533 U.S. at 326. The Court found that "[t]here can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions." Id. at 322. Thus, the Supreme Court found, because the respondent in that case and other aliens like him "almost certainly relied upon [the significant likelihood of receiving Section 212(c) relief prior to the enactment of AEDPA and IIRIRA] in deciding whether to forgo their right to a trial, the elimination of any possibility of § 212(c) relief . . . has an obvious severe retroactive effect." Id. at 325. Therefore, Section 440(d) cannot be applied retroactively to bar relief to aliens such as the petitioner who pleaded guilty to an aggravated felony prior to AEDPA's effective date. The Attorney General's prior decision to apply AEDPA's limitation on Section 212(c) relief to those, like the petitioner, who were not in deportation proceedings on AEDPA's effective date but who pleaded guilty prior to that date is incorrect under St. Cyr II.
The Government argues that the Court should deny the petition despite the IJ's and BIA's erroneous reliance on Matter of Soriano because the petitioner is ineligible for Section 212(c) relief by virtue of having spent more than five years in prison.See 8 U.S.C. § 1182(c) (Section 212(c) relief not available "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 5 years"); Buitraqo-Cuesta v. INS, 7 F.3d 291, 296 (2d Cir. 1993) (petitioner ineligible for Section 212(c) relief who had served over five years in prison at the time IJ ordered petitioner deported); Davis v. Ashcroft, No. 01 Civ. 6228, 2003 WL 289624, at *5-6 (S.D.N.Y. Feb. 10, 2003) (petitioner ineligible for Section 212(c) relief who accrued five years in prison during the course of INS proceedings);Copes, 2001 WL 830673, at *5-6 (alien who had spent more than five years in prison by the time alien was served with order to show cause was ineligible for 212(c) relief). The petitioner does not allege that he was incarcerated for less than five years of his sixty-nine month sentence, but instead claims that there is no clear finding in the administrative record of the length of his incarceration and thus the Court should remand the case to the BIA for further fact-finding.
There is no evidence in the administrative record that Familia-Garcia has spent less than five years in prison and, in fact, the record supports the Government's contention that Familia-Garcia has been incarcerated in excess of five years. First, by Familia-Garcia's own admission, he was in prison from February 1992 through March 1997. (R. at 51, 54.) This fact roughly correlates with the statement in the record that Familia-Garcia was released on bond on or about February 27, 1997. (R. at 63.) Moreover, it is clear from the record that the petitioner was incarcerated pending trial at least as of February 13, 1992 and that his detention was continued at that point without bail. (R. at 75.) He was then sentenced on October 5, 1992 to consecutive terms of 51 and 18 months, at which point he was remanded to custody and eventually delivered to the Federal Correctional Institution at Butner, North Carolina on November 10, 1992. (R. at 67, 71, 76.) The evidence thus indicates that the petitioner had already spent five years in prison at the time the IJ issued the decision and, of course, when the BIA issued its decision on July 28, 1998.
In order for the immigration authorities to consider the petitioner's application for Section 212(c) relief, Familia-Garcia would have to show that he had not served five or more years in prison for aggravated felony offenses. See Rankine, 319 F.3d at 95 ("To qualify for such relief, an alien was required to show that he . . . (3) had not committed an aggravated felony for which he had served a term of at least five years."); St. Cyr I, 229 F.3d at 410 ("In a case where a convicted alien demonstrated that . . . his or her conviction was not for an `aggravated felony,' for which he or she had served a term of imprisonment of five years or longer, the Attorney General could, in her discretion, waive deportation."). The petitioner does not argue that he has spent less than five years in prison on aggravated felony convictions and thus there is no reason to believe that the BIA could reach the merits of his application for lack of evidence put forth by Familia-Garcia that he is eligible for such relief.
The Government concedes that remand would be appropriate if there was a factual dispute concerning the petitioner's convictions or time served.
In this case, remand would be futile because there is no factual dispute. See NLRB v. American Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982) ("reversal and remand [required] only where there is a significant chance that but for the error, the agency might have reached a different result") (emphasis in the original); Foti v. INS, 332 F.2d 424, 424 (2d Cir. 1964) (per curiam) ("Remand of this case to the Attorney General would be a pointless formality since the Attorney General is required by the statute to deny petitioner's application."). But see, Gonzalez v. INS, No. 01 Civ. 6229, 2002 WL 31444952, at *6-7 (S.D.N.Y. Oct. 31, 2002) (noting American Geri-Care but remanding petition to the BIA on the ground that petitioner had a substantial chance of receiving Section 212(c) relief).
The cases relied on by the petitioner do not require a different result. In Dwomoh v. Sava, 696 F. Supp. 970, 980 (S.D.N.Y. 1988), on which the petitioner relies, Judge Wood remanded the case to the BIA for further proceedings despite finding that "uncontroverted evidence in the record, along with those facts found by the BIA, are sufficient for this Court to conclude that [the petitioner] qualifies for asylum under the Congressional definition of refugee" in spite of the BIA's earlier finding to the contrary. In that case, remand was anything but futile. Moreover, in so doing, Judge Wood relied in part on the Court of Appeals' decision in Brice v. United States Department of Justice, 806 F.2 415 (2d Cir. 1986), on which the petitioner also relies, in which the Court of Appeals stated that "[w]here an alien asserts a fear of persecution and presents some objective evidence supporting that fear, it is the responsibility of the immigration judge and the BIA to assess the proof in light of the correct test, and we will not do so in the first instance on appeal." Id. at 418 (emphasis added).
In this case, the petitioner has put forth no evidence supporting his claim, nor does Familia-Garcia argue that he is eligible for Section 212(c) relief. Rather, he simply argues that the BIA should engage in the fact-finding that the petitioner had served five years in prison for aggravated felonies. But remand is not necessary when it would be futile and when the petitioner has not raised a factual dispute. Without any factual dispute there is no reason to remand to the BIA and the petition for a writ of habeas corpus is denied.
CONCLUSION
Any remaining arguments of the parties are either moot or without merit. For the reasons explained above, the petition for a writ of habeas corpus is denied. The Clerk is directed to enter judgment and to close this case.