Summary
finding erroneous retroactive application of section 440(d) of the AEDPA harmless because petitioner had served five years imprisonment by the time the BIA dismissed his appeal
Summary of this case from Archibald v. Immigration Naturalization ServiceOpinion
01 Civ. 9400 (WHP)(GWG)
March 26, 2002
REPORT AND RECOMMENDATION
Petitioner Arlington Elquemeda Gibson, who is in the custody of the Immigration and Naturalization Service ("INS") and subject to a final removal order, petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons, the petition should be denied and the stay of his removal vacated.
I. FACTUAL BACKGROUND
Gibson is a native and citizen of Guyana. See Petition for Writ of Habeas Corpus to the United States District Court for the Southern District of New York, filed October 25, 2001 ("Petition") at 2; R. 49, 80, 94. He entered the United States as a lawful permanent resident on or about August 13, 1986. Petition at 2; R. 49. On November 19, 1991, he was indicted by a grand jury on a number of felony charges relating to the shooting death of an individual in the Bronx. R. 70-76. On November 5, 1992, Gibson was convicted by his plea of guilty in the Bronx County Supreme Court of Manslaughter in the Second Degree (N.Y. Penal Law § 125.15) and Criminal Use of a Firearm in the First Degree (N.Y. Penal Law § 265.09). R. 49-50, 77-78, 94. He was sentenced to two concurrent indeterminate terms of imprisonment of five-to-fifteen years. R. 49-50, 77-78, 94.
References to "R. _____" are to the Certified Administrative Record of Petitioner's removal proceedings as compiled by the Executive Office for Immigration Review of the United States Department of Justice (Exhibit A to the respondents' Return, filed February 8, 2002).
On June 16, 1997, the INS served Gibson with a Notice to Appear, charging him as subject to removal under two separate statutory provisions: (1) section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (the "INA"), as amended, 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of an aggravated felony as defined in 101(a)(43)(F) of the INA; and (2) section 237(a)(2)(c), as amended, 8 U.S.C. § 1227(a)(2)(C), because he had been convicted of using, in violation of any law, any weapon part or accessory which is a firearm or destructive device. R. 92-95.
Immigration Judge Mitchell A. Levinsky granted Gibson two adjournments of his removal hearing so that he could obtain representation. R. 53-61. On August 23, 1999, Gibson's removal hearing proceeded with Gibson represented by the Rev. Robert Vitaglione, an accredited representative. R. 63. At the hearing Gibson conceded the truth of the allegations in the Notice to Appear. R. 64; see R. 94. He also conceded that he served more than five years for his 1992 conviction. R. 65 The only relief he requested was a discretionary waiver of deportation under former section 212(c) of the INA. Id.
At the end of the hearing, Judge Levinsky ruled that the INS established by clear and convincing evidence that Gibson should be removed for the reasons stated in the Notice to Appear. R. 50. In addition, Judge Levinsky ruled that Gibson was not eligible for a waiver under Section 212(c) because Gibson was in a removal, not a deportation, proceeding, and section 212(c) was only available in deportation proceedings. Judge Levinsky also found that Gibson was not eligible for relief under Section 240A(a), 8 U.S.C. § 1229b(a), which replaced section 212(c), because Gibson was convicted of an aggravated felony. R. 50-51. Finally, he noted that Gibson was not eligible for any other relief because of his aggravated felony conviction. R. 51. The judge ordered Gibson to be removed to his native Guyana. Id.
Gibson appealed Judge Levinsky's decision to the Board of Immigration Appeals ("BIA") by Notice of Appeal dated August 31, 1999. R. 41-43. The only issue raised was Judge Levinsky's ruling that Gibson was ineligible for section 212(c) relief. R. 22-29, 43. Gibson argued that the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA") and the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), should not be applied retroactively to bar him from seeking relief under section 212(c) because he had committed his crimes prior to the effective dates of those acts. R. 3, 22-29. Gibson also contended that IIRIRA is an unconstitutional ex post facto statute. R. 43.
On May 18, 2000, the BIA affirmed Judge Levinsky's decision. R. 2-4. The BIA ruled that the application of IIRIRA to cases, like Gibson's, begun after the effective date of IIRIRA does not constitute retroactive application of IIRIRA. Therefore, the only types of relief available to him, if any, were the types of relief available on the date removal proceedings began, June 24, 1997, which was the date the INS served him with the Notice to Appear. R. 3. Because the law in effect after 1997 did not permit section 212(c) relief to persons convicted of aggravated felonies, Gibson was ordered removed. With respect to Gibson's ex post facto argument, the BIA stated that it "cannot rule on the constitutionality of laws enacted by Congress," but added "the constitutional ex post facto prohibition does not apply in removal proceedings, which are civil rather than criminal in nature." Id. Board Member Lory Diana Rosenberg dissented on the ground that the bar to section 212(c) relief for convictions that occurred prior to the enactment of AEDPA and IIRIRA would be an impermissible retroactive application of law not intended by Congress. R. 5-15.
On October 25, 2001, Gibson filed this petition for writ of habeas corpus. Gibson's only claim in his petition is that he is eligible for section 212(c) relief and the denial of this relief violates his Fifth and Fourteenth Amendment rights. Petition at 8-14. He asks that this Court vacate the removal order, allow him to apply for a section 212(c) waiver, grant a "stay of deportation pending a determination in the case," and release him "if the process takes more than ninety days." Petition at 14. On January 11, 2002, the Court stayed Gibson's removal until further order of the Court.
On February 8, 2002, the Government filed and served its papers in opposition to the petition. Gibson has not responded to the Government's papers.
II. DISCUSSION
As the Government concedes, the legal argument underpinning the BIA's decision was rejected by the Supreme Court last year in INS v. St. Cyr, 121 S.Ct. 2271 (2001). In St. Cyr, 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 the plea under the law then in effect." Id. at 2293.
In other words, Gibson's request for section 212(c) relief must be judged under the law applicable to claims for relief under section 212(c) as the law existed in November 1992.
Nonetheless, the Government contends that although St. Cyr rejects the legal doctrine relied on by the BIA, Gibson's petition for writ of habeas corpus must still be denied. In support of its position, the Government argues that Gibson was ineligible to apply for section 212(c) relief because — even under the law in effect at the time of Gibson's plea in 1992 — Gibson was statutorily ineligible to apply for section 212(c) relief. The Government provides two independent reasons for Gibson's ineligibility: first, he served a term of imprisonment of more than five years for an "aggravated felony" and second, he was convicted of a weapons offense.
Each is discussed separately.
Gibson's Status as an Aggravated Felon
The former section 212(c) of the INA permitted lawful permanent residents with an unrelinquished domicile of seven consecutive years to apply for a waiver of deportation. As of November 5, 1992, however (the date Gibson pled guilty), Congress had amended section 212(c) to bar such relief for any "alien who has been convicted of one or more aggravated felonies and has served for such a felony or felonies a term of imprisonment of at least 5 years."
This change to the statutory language took place in two steps. First, in 1990, Congress amended former section 212(c) to provide that "an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years" shall not be eligible for a discretionary waiver under section 212(c). Immigration Act of 1990 ("IMMAct"), Pub.L. No. 101-649, § 511(a), 104 Stat. 4978, 5052. Then, in 1991, the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 ("MTINA") replaced the phrase "an aggravated felony and has served" with "one or more aggravated felonies and has served for such felony or felonies," thereby clarifying that the five-year term could be served for multiple convictions. MTINA § 306(a)(10), Pub.L. No. 102-232, 105 Stat. 1733, 1751. The amendment became effective with the enactment of IMMAct. MTINA § 310, 105 Stat. 759.
Subsequent to Gibson's plea, in 1996, former section 212(c) was repealed and was replaced by a form of relief called "cancellation of removal." IIRIRA § 304(b), 110 Stat. at 3009-587 (codified at 8 U.S.C. § 1229b). Aliens who have been convicted of an aggravated felony are now not eligible for cancellation of removal regardless of the alien's term of incarceration. See 8 U.S.C. § 1229b(a)(3); see also Arias-Agramonte v. Comm'r of INS, 2000 WL 1059678, at *13 (S.D.N.Y. Aug. 1, 2000).
At the removal proceeding before the Immigration Judge, Gibson conceded all the elements of this bar. He admitted that he had been convicted of Manslaughter in the Second Degree under Penal Law § 125.15 and that the term of imprisonment imposed was 5-15 years. See R. 94, 64 (lines 14-15). He also conceded that he had actually served more than five years for his 1992 manslaughter conviction. See R. 65.
Under the five-year provision, "an alien's period of incarceration accrues through and including the date that an administratively final order of deportation is entered against her." Copes v. McElroy, 2001 WL 830673 at * 5 (S.D.N.Y. July 23, 2001) (citing Buitrago-Cuesta v. INS, 7 F.3d 291, 296 (2d Cir. 1993) and its statement that "[j]ust 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 an alien spent in prison during the course of a hearing for purposes of rendering them ineligible for § 212(c) relief"). Gibson's order of deportation did not become final until May 18, 2000, when the BIA dismissed Gibson's appeal. See 8 C.F.R. § 241.1(a). At the time of his hearing in August 1999, Gibson had already served more than seven years imprisonment for his conviction.
An "aggravated felony" was defined in 1992 to include a "crime of violence . . . for which the term of imprisonment imposed . . . is at least 5 years." See 8 U.S.C. § 1101(a)(43)(F) (1994).
Manslaughter is unquestionably a crime of violence under the statute. See United States v. Campbell, 94 F.3d 125, 128 (4th Cir. 1996), cert. denied, 520 U.S. 1242 (1997); Johnson v. Vomacka, 2000 WL 1349251, at *4 (S.D.N.Y. Sept. 20, 2000). Accordingly, Gibson was convicted of an "aggravated felony" under the definitions in effect at the time of his conviction.
In addition, today's expanded definition of "aggravated felony" — which does not even contain the five-year requirement — applies retroactively to aliens convicted pre-IIRIRA if removal proceedings were instituted after the effective date. See Kuhali v. Reno, 266 F.3d 93, 110-12 (2d Cir. 2001).
Thus, because Gibson served more than five years for an "aggravated felony" conviction, Gibson is statutorily ineligible for section 212(c) relief. See, e.g., Guner v. Reno, 2001 WL 940591, at *2 (S.D.N.Y. Aug. 20, 2001); Copes v. McElroy, 2001 WL 830673, at * 5-6 (S.D.N.Y. July 23, 2001).
Gibson briefly contends that the respondents should be barred from asserting that he has served five years in prison because they could have initiated removal proceedings before he had served five years. See Petition at 12-13. In other words, if the Government had brought the petition shortly after his conviction, the five-year provision of the aggravated felony bar would not have prevented him from seeking section 212(c) relief. This argument fails, however, because a federal court does not have jurisdiction to review the Attorney General's decision to commence deportation or removal proceedings. See 8 U.S.C. § 1252(g); Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999). Even if this Court had jurisdiction, there would have been no reason to require the INS to institute proceedings sufficiently early in a criminal alien's sentence so that the alien could circumvent Congress's intent to deport aliens who had served five years' imprisonment.
Gibson's Weapons Conviction
Gibson also admitted at the hearing that he had been convicted of Criminal Use of a Firearm in the First Degree. R. 94, 64. Gibson's firearm conviction also rendered him ineligible for section 212(c) relief at the time of his plea as was squarely held in Cato v. INS, 84 F.3d 597, 599-600 (2d Cir. 1996). This is because deportation for conviction of a firearms offense, see 8 U.S.C. § 1227(a)(2)(C), has no corresponding grounds in the list of offenses for which an alien may be excluded from entry. See 84 F.3d at 599-600; accord Cinquemani v. Ashcroft, 2001 WL 939664, at *4 (E.D.N.Y. Aug. 16, 2001) ("[t]he Second Circuit is clear that a petitioner ordered deported following a conviction on a weapons charge is statutorily ineligible for INA § 212(c) relief"); Gomez v. Comm'r of INS, 2001 WL 637382, at *2 (S.D.N.Y. June 7, 2001) ("a petitioner ordered deported following a conviction on a weapons charge is not entitled to a discretionary waiver hearing under former § 212(c)"). Thus, for this reason as well, Gibson is not eligible for section 212(c) relief.
No Other Relief Available
Gibson has not raised, nor does he have, any other avenues to escape deportation. As the BIA held, R. 51, Gibson's aggravated felony conviction precludes him from seeking cancellation of removal by the Attorney General under the current immigration laws. This relief is only available to aliens who have not been convicted of an aggravated felony. 8 U.S.C. § 1229b(a).
Because Gibson was convicted of an aggravated felony, he is not eligible to seek cancellation of his removal.
Necessity of Remand to INS
The Supreme Court has held that "the grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based." SEC v. Chenery Corp., 318 U.S. 80, 87 (1943). Accordingly, this Court must consider whether it should remand this case to the Immigration and Naturalization Service in order for it to rule on Gibson's section 212(c) application. While the broad statement of the rule articulated in Chenery would seem to require a remand, later case law makes plain that a remand is not required where the remand would be "futil[e]." Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747, 756 n. 7 (1986) (citing Illinois v. ICC, 722 F.2d 1341, 1348-49 (7th Cir. 1983)), overruled on other grounds by Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992); accord N.L.R.B. v. Wyman-Gordon, 394 U.S. 759, 766 n. 6 (1969) (Chenery does not "require that we convert judicial review of agency action into a ping-pong game.").
The Second Circuit has held that a remand to an administrative agency is not required where, as here, there is no chance that the agency could reach a different result. N.L.R.B. v. American Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982) ("[T]he Chenery doctrine, as Professor Davis has rightly said, has been 'softened in its application.' It does not mean that a reversal and remand are required each and every time an administrative agency assigns a wrong reason for its action; rather, it requires reversal and remand only where there is a significant chance that but for the error, the agency might have reached a different result.") (citation omitted), cert. denied, 461 U.S. 906 (1983). Other courts also have recognized that there is no need for a remand where the remand would be pointless or futile. See, e.g., Envirocare of Utah, Inc. v. Nuclear Regulatory Comm'n., 194 F.3d 72, 79 (D.C. Cir. 1999) ("When 'there is not the slightest uncertainty as to the outcome of a proceeding' on remand, courts can affirm an agency decision on grounds other than those provided in the agency decision.") (quoting N.L.R.B. v. Wyman-Gordon, 394 U.S. at 766 n. 6); Glisson v. U.S. Forest Service, 138 F.3d 1181, 1183 (7th Cir.), ("Chenery . . . does not require futile remands"), cert. denied, 525 U.S. 1022 (1998); Vista Hill Found., Inc. v. Heckler, 767 F.2d 556, 566 n. 9 (9th Cir. 1985) ("A remand is not required when it would be an idle and useless formality"); Donovan v. Stafford Constr. Co., 732 F.2d 954, 961 (D.C. Cir. 1984) (remand would serve no purpose because "only one conclusion would be supportable").
In Chenery itself, the Supreme Court noted that the administrative order at issue could have been adjudged valid only "as a determination of policy or judgment which the agency alone is authorized to make." 318 U.S. at 88 (emphasis added). Because the Court reasoned that "a judicial judgment cannot be made to do service for an administrative judgment," id., it remanded the case to the administrative agency. Here, by contrast, a remand would not result in the INS exercising any judgment. Nor would the agency be required to find any facts or make a discretionary decision. Instead, all the agency could possibly do would be to apply the governing statute, which unequivocally bars the relief Gibson seeks. Thus, this case provides the most appropriate instance for eschewing a remand. See Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1440 (8th Cir. 1993) ("[T]he Supreme Court clearly limited Chenery to situations in which the agency failed to make a necessary determination of fact or of policy."); accord Koyo Seiko Co. v. United States, 95 F.3d 1094, 1101 (Fed. Cir. 1996) (no remand required where the remand would not have "implicate[d] the exercise of agency discretion in applying subtle and complex statutory standards to particular facts").
Moreover, the basis for this Court's approval of the agency's action is essentially congruent with the agency's determination — that Gibson is statutorily ineligible for section 212(c) relief — albeit for a different reason. Where, as here, "the language of the statute commands a particular outcome, . . . the fact that the agency states an incorrect legal rationale is insufficient to require a remand." National Mining Ass'n v. United States Dept. of Interior, 251 F.3d 1007, 1014 (D.C. Cir. 2001) (citing Motion Picture Ass'n of Am. v. Oman, 969 F.2d 1154, 1158 (D.C. Cir. 1992). Because a remand to the Immigration and Naturalization Service would be an exercise in futility, the petition should be denied.
III. CONCLUSION
Gibson's petition for a writ of habeas corpus should be denied. In addition, the Order staying the removal or deportation of Gibson should be vacated.
Notice of Procedure for 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 have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable William H. Pauley, III, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time to file objections must be directed to Judge Pauley. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985).