Opinion
02 Civ. 2734 (AJP)
August 5, 2002
OPINION AND ORDER
Pro se petitioner Fausto Gonzalez-Polanco brought this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging a final administrative order of removal by the Board of Immigration Appeals ("BIA"). (Dkt. No. 1: Pet. at 1.) Gonzalez-Polanco's petition essentially challenges the BIA's denial of discretionary relief from removal under Immigration and Nationality Act ("INA") § 212(c), 8 U.S.C. § 1182(c) (repealed 1996), and § 212(h), 8 U.S.C. § 1182(h), and also asserts that he is entitled to a hearing "to have the hardship [caused by his removal] to [his] children . . . examined" under United States treaty obligations and international law based on the recent decision in Beharry v. Reno, 183 F. Supp.2d 584, 604-05 (E.D.N.Y. 2002). (Pet. at 1.)
The parties have consented to decision of this habeas petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 5.)
For the reasons set forth below, Gonzalez-Polanco's habeas petition is DENIED.
FACTS Background
In December 1988, Gonzalez-Polanco, a native and citizen of the Dominican Republic, illegally entered the United States without inspection near San Ysidro, California. (See Dkt. No. 7: INS Return Ex. A: Certified Administrative Record ["R."] 83:5/9/96 Removal Hearing Tr.; R. 231: INS Order to Show Cause Notice of Hearing.)
All persons arriving at a port-of-entry to the United States must be inspected by officials of the United States government:
(1) Each alien seeking admission at a United States port-of-entry shall present whatever documents are required and shall establish to the satisfaction of the immigration officer that he or she is not subject to removal under the immigration laws, Executive Orders, or Presidential Proclamations and is entitled under all of the applicable provisions of the immigration laws and this chapter to enter the United States. A person claiming to have been lawfully admitted for permanent residence must establish that fact to the satisfaction of the inspecting immigration officer and must present proper documents in accordance with § 211.1 of this chapter. (2) An alien present in the United States who has not been admitted . . . is subject to the provisions of section 212(a) of the Act and to removal under section 235(b) or 240 of the Act.8 C.F.R. § 235.1(d)(1)-(2).
On March 12, 1991, in Supreme Court, New York County, Gonzalez-Polanco was convicted, upon a plea of guilty, of third degree criminal possession of a weapon and attempted possession of a controlled substance (cocaine) with intent to sell, and sentenced to concurrent terms of one-year imprisonment. (R. 113-20: Sentence Commitment Record Indictment; see also Return ¶ 2.)
On August 19, 1991, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause and Notice of Hearing alleging that Gonzalez-Polanco was subject to deportation pursuant to (1) INA § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B), as an alien who entered the United States without inspection, and (2) INA § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C), as an alien convicted of firearm possession. (R. 231-33: INS Order to Show Cause Notice of Hearing; see also Return ¶ 3.)
INS Removal Proceedings
On May 7, 1992, Gonzalez-Polanco's removal hearings commenced before Immigration Judge ("IJ") John Speer in New York City. (R. 76-78:5/7/92 Removal Hearing Tr.; see also Return ¶ 4.) Because Gonzalez-Polanco had not received the INS's Order to Show Cause, the IJ adjourned the removal proceedings. (R. 77-78.)
Gonzalez-Polanco was represented by counsel at all his removal hearings. (See R. 76-77: 5/7/92 Removal Hearing Tr.; R. 81:5/9/96 Removal Hearing Tr.; R. 88:8/1/96 Removal Hearing Tr.; R. 91:10/17/96 Removal Hearing Tr.; R 96-97:4/29/98 Removal Hearing Tr.)
Gonzalez-Polanco had been released from INS custody on a $13,000 bail bond on or about September 30, 1991. (R. 226: Notice of Release of Detained Alien; R. 227: Notice of IJ With Respect to Custody.)
On September 8, 1994, the IJ ordered Gonzalez-Polanco deported to the Dominican Republic in absentia when neither Gonzalez-Polanco nor his attorney appeared at the hearing. (R. 79-80:9/8/94 Removal Hearing Tr.; see also Return ¶ 6.) On September 14, 1994, the IJ reopened Gonzalez-Polanco's deportation proceedings when he learned that Gonzalez-Polanco had requested a continuance which the INS received on September 6, 1994 but which did not reach Gonzalez-Polanco's file until after the September 8, 1994 hearing. (R. 121:9/14/94 Order on Motion to Reopen; R. 211-15: Motion for Continuance; see also Return ¶ 7.)
On May 9, 1996, the removal proceedings resumed, and Gonzalez-Polanco admitted his deportability on the two charges contained in the INS's Order to Show Cause. (R. 81-85:5/9/96 Removal Hearing Tr.; see also Return ¶ 8.) At the hearing, the INS entered into evidence Gonzalez-Polanco's conviction for attempted possession of a controlled substance. (R. 84.) Gonzalez-Polanco indicated that he had divorced a United States citizen who previously had filed an I-130 application on his behalf. (R. 83.) Gonzalez-Polanco requested an opportunity to file a second I-130 application because he had married another United States citizen who wished to file an I-130 application, and he requested an adjournment to apply for a waiver of deportation pursuant to INA § 212(c), 8 U.S.C. § 1182(c), which provided for discretionary relief from removal for lawful permanent residents in the United States for seven years or more. (R. 83-84.) Consequently, the IJ adjourned the hearing to August 1, 1996. (R. 85.)
A citizen or lawful permanent resident of the United States may file an I-130 application to establish a relationship to certain alien relatives who wish to immigrate to the United States. See Iljazi v. INS, No. 94-4193, 112 F.3d 504 (table), 1996 WL 626398 at *1 (2d Cir. Oct. 30, 1996); Setharatsomphou v. Reno, No. 98 C 7076, 1999 WL 755292 at *1 n. 2 (N.D.Ill. Sept. 27, 1999) ("The I-130 is a form necessary to petition for an immediate relative immigrant visa."); Saywack v. Attorney General, 91 Civ. 7797, 1993 WL 205121 at *1 n. 1 (S.D.N.Y. June 9, 1993) (Leval, D.J.); see also 8 U.S.C. § 1151(b)(2)(A)(i). Once the alien relative has an approved I-130 application he may apply to the Attorney General for an adjustment of immigration status to that of lawful permanent resident under INA § 245, see Iljazi v. INS, 1996 WL 626398 at *1 ("The approval of the [Form I-130] petition made [petitioner] eligible for an adjustment of status to become a permanent legal resident of the United States."); Setharatsomphou v. Reno, 1999 WL 755292 at *5 ("The process, as the court understands it, is as follows: In order to become eligible for an adjustment of status, [the alien] first must petition successfully for an immediate relative immigrant visa, which requires submission of the I-130 form. Next, he must apply for adjustment of his non-immigrant status under INA § 245(a). . . .) (fn. omitted), assuming the alien relative meets the other requirements of the statute (which, as discussed below, Gonzalez-Polanco does not).
INA § 212(c) provided discretionary relief from deportation if the alien could demonstrate that (1) he or she had been admitted to the United States as a lawful permanent resident; (2) he or she had resided in this country continuously for at least seven years; and (3) 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. See 8 U.S.C. § 1182(c) (repealed 1996); see also Sol v. INS, 274 F.3d 648, 649 n. 3 (2d Cir. 2001), cert. denied, 122 S.Ct. 2624 (2002); Domond v. U.S. INS, 244 F.3d 81, 83-84 (2d Cir. 2001); Brito-Deleon v. Ashcroft, 188 F. Supp.2d 340, 346 (S.D.N.Y. 2002); Bosquet v. INS, 00 Civ. 6152, 2001 WL 1029368 at *2 (S.D.N.Y. Sept. 6, 2001) (Peck, M.J.).
At the next hearing on August 1, 1996, the INS served Gonzalez-Polanco with an additional charge of deportability, alleging that he was deportable pursuant to INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i), as an alien who had been convicted of a controlled substance offense. (R. 87-90:8/1/96 Removal Hearing Tr.; R. 103-04: Additional Charges of Deportability; see also Return ¶ 9.) The IJ adjourned the hearing to allow Gonzalez-Polanco to address the additional charge of deportability. (R. 89-90.)
At the next hearing on October 17, 1996, Gonzalez-Polanco stated to the IJ that his wife's I-130 application had been approved, permitting Gonzalez-Polanco to apply for adjustment of immigration status under INA § 245. (Return ¶ 10; R. 91-95:10/17/96 Removal Hearing Tr.) He then requested an opportunity to submit concurrent applications for waivers under INA §§ 212(h) and 212(c) to overcome his "exclusionary grounds" (i.e., his illegal entry and cocaine and weapons convictions which formed the basis of his grounds for removal) and for adjustment of his immigration status under INA § 245. (R. 93-94.) The IJ granted an adjournment so that Gonzalez-Polanco could brief his eligibility for waivers of deportation under INA §§ 212(c) and 212(h) and for adjustment of immigration status under INA § 245. (R. 94.)
INA § 245, 8 U.S.C. § 1255, allows aliens who were lawfully inspected and admitted into the United States to apply to the Attorney General for an adjustment of their immigration status "to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." 8 U.S.C. § 1255(a).
At the conclusion of the next hearing on April 29, 1998 (R. 96-100:4/29/98 Removal Hearing Tr.), the IJ issued his oral decision ordering Gonzalez-Polanco deported:
The respondent is a native and citizen of the Dominican Republic, an adult male alien, who seeks adjustment of [immigration] status under Section 245 of the Immigration and Nationality Act. . . . The Assistant District Counsel has maintained that relief either under 212(c) of the Immigration and Nationality Act or 212(h) of the Immigration and Nationality Act is barred to the respondent. In reviewing the conviction for narcotics, I find it to fall within the category of an aggravated felony.
But before reaching that point under Section 212(c) of the Immigration and Nationality Act, I note that the respondent is not a lawful permanent resident of the United States but a respondent illegally in the United States by virtue of entry without inspection. I find he is barred from relief under Section 212(c) of the Immigration and Nationality Act. I find the respondent also is barred under Section 212(h) of the Immigration and Nationality Act under the authority of Matter of Yeung, Int. Dec. 3297 (BIA 1996). It is clear that the conviction itself was for possession of a controlled substance with intent to distribute same. Without the benefit of a waiver under Section 212(c) or Section 212(h) of the Immigration and Nationality Act, I find that the respondent is ineligible for relief under Section 245 of the Immigration and Nationality Act.
In In re Yeung, No. A40 430 178, 21 I. N. Dec. 610, 1996 WL 683917 (BIA Nov. 27, 1996) the BIA held that under INA § 212(h), as amended by § 348(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), an alien who has been admitted to the United States as a lawful permanent resident and who has been convicted of an aggravated felony is ineligible for a waiver of deportation. 21 I. N. Dec. at 611. The BIA further held that this amendment to § 212(h) of the Act is effective on IIRIRA's enactment date (September 30, 1996) and applies to aliens who were in exclusion and deportation proceedings as of that date. 21 I. N. Dec. at 612.
. . . .
IT IS SO ORDERED that the respondent be deported from the United States to the Dominican Republic on the charge contained in the Order to Show Cause.
(R. 68-70: IJ 4/29/98 Oral Decision).
On May 4, 1998, Gonzalez-Polanco (through counsel) appealed the IJ's decision to the BIA, asserting that the IJ erred in holding that his controlled substance conviction is an aggravated felony. (R. 52: Gonzalez-Polanco Appeal Br.; R. 56: Notice of Appeal to the BIA; see also Return ¶ 12.) Gonzalez-Polanco also argued that he is eligible for adjustment of immigration status under INA § 245 because he has an approved I-130 application and because he alleged he is eligible for relief from deportation under INA §§ 212(c) and 212(h). (R. 52, 56.)
On February 25, 2002, the BIA summarily affirmed, without opinion, the IJ's decision ordering Gonzalez-Polanco removed; the decision became the INS's final determination. (R. 51: 2/25/02 BIA Decision; see also Return ¶ 13.)
On or about March 6, 2002, Gonzalez-Polanco filed a pro se "Motion to Reopen and Reconsider" with the BIA. (R. 28-30: Motion to Reopen and Reconsider; see also Return ¶ 14.) In his motion Gonzalez-Polanco asserted that: (1) he is eligible for adjustment of immigration status under INA § 245 because he has an approved I-130 application; (2) the BIA erred in "ignor[ing]" In re Khourn, No. A22 483512, 21 I. N. Dec. 1041, 1997 WL 706630 (BIA Oct. 31, 1997), and In re Rainford, No. A-41651633, 20 I. N. Dec. 598, 1992 WL 323809 (BIA Sept. 9, 1992); and (3) "[e]ffects to [his] children, all minors, under international treaties, were ignored when [he is] protected by . . . Don Beharry v. INS." (R. 28: Motion to Reopen and Reconsider.)
In In re Khourn, the BIA considered whether possession with intent to distribute a controlled substance is a crime of moral turpitude within the meaning of INA Section 241(a)(2)(A)(ii), 8 U.S.C. § 1251(a)(2)(A)(ii) (alien convicted of two or more crimes of moral turpitude is deportable). The BIA held that possession with intent to distribute a controlled substance is a crime of moral turpitude. In re Khourn, 21 I. N. Dec. at 1047. However, unlike the petitioner in Khourn, Gonzalez-Polanco was not ordered deported pursuant to INA § 241(a)(2)(A)(ii). Gonzalez-Polanco was ordered deported based on his conviction for criminal possession of a controlled substance in the third degree, pursuant to INA § 241(a)(2)(B)(i), as an alien who has been convicted of violating a controlled substance law. (R. 69.)
In Rainford, the BIA held that "the [weapons possession] conviction which renders the respondent deportable under Section 241(a)(2)(C) of the Act will not preclude a showing of admissibility for purposes of [adjustment of status under] Section 245(a) and that if granted adjustment of status to lawful permanent resident, the respondent will no longer be deportable on the basis of this prior conviction.") 20 I. N. Dec. at 602. Thus, even an alien convicted of a weapons offense is "admissible to the United States and therefore eligible to apply for adjustment of status" under section 245 of the INA. 20 I. N. Dec. at 602. Nevertheless, Rainford does not help Gonzalez-Polanco because he still is ineligible for INA § 245 relief due to his controlled substance conviction.
On March 28, 2002, the BIA denied Gonzalez-Polanco's motion to reconsider, explaining:
The respondent is not now and never has been a lawful permanent resident of the United States. Rather, the respondent does not contest that he entered the United States illegally without inspection. Therefore, he has never been eligible for a waiver of inadmissability under section 212(c) of the Immigration and Nationality Act. Moreover, it is uncontested that the respondent has been convicted of a controlled substance violation involving the criminal possession of cocaine. A waiver of inadmissability under section 212(h) of the Act is not now, and was not at the time of the respondent's conviction, available to waive an alien's inadmissability under section 212(a)(2)(A)(i)(II) of the Act resulting from a controlled substance violation involving possession of cocaine. Inasmuch as the respondent cannot waive the ground of his inadmissability under section 212(a)(2)(A)(i)(II) of the Act, he cannot establish his eligibility to adjust status under section 245(a)(2) of the Act. Thus, his factual and legal contentions in his motion to reopen and reconsider are irrelevant to the disposition of his case.
Accordingly, the respondent's motion is denied.
According to the INS's Return: "On April 26, 2002, petitioner filed a second motion to reconsider with the BIA, which is pending." (Return ¶ 17.)
Gonzalez-Polanco's Present § 2241 Habeas Petition
Gonzalez-Polanco's pro se habeas corpus petition, pursuant to 28 U.S.C. § 2241, essentially challenges the BIA's denial of discretionary relief from removal under INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996), and § 212(h), 8 U.S.C. § 1182(h), and asserts that he is entitled to a hearing "to have the hardship [caused by his removal] to [his] children . . . examined prior to any removal from a country that [he] had adopted as [his] own and wish to remain next to [his] beloved family" under United States treaty obligations and international law consistent with the recent decision in Beharry v. Reno, 183 F. Supp.2d 584, 604-05 (E.D.N.Y. 2002) (Weinstein, D.J.). (Dkt. No. 1: Pet. at 1.)ANALYSIS I. GONZALEZ-POLANCO IS NOT ELIGIBLE FOR RELIEF UNDER INA § 212(c) BECAUSE HE IS NOT A LAWFUL PERMANENT RESIDENT
It is not at all clear whether Gonzalez-Polanco is pursuing his § 212(c) claim in this habeas petition. He does not mention it on the face of his one page petition, but his petition attaches his "Motion to Reopen and Reconsider" to the BIA, and the INS's brief addresses § 212(c). (Dkt. No. 6: INS Br. at 6-8.) The Court therefore also will address § 212(c).
Prior to IIRIRA, INA § 212(c) provided the Attorney General with broad discretion to waive deportation in certain cases. See INS v. St. Cyr, 533 U.S. 289, 293, 121 S.Ct. 2271, 2275 (2001) ("St. Cyr II"); see also, e.g., Lawrence v. INS, 00 Civ. 2154, 2001 WL 818141 at *3 (S.D.N.Y. July 20, 2001) (Peck, M.J.). After IIRIRA's enactment, the Second Circuit held that although relief under former INA § 212(c) was repealed (by IIRIRA section 304(b)), § 212(c) relief remained available to aliens in removal proceedings who entered guilty or nolo contendere pleas prior to IIRIRA's September 30, 1996 enactment. St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir. 2000) ("St. Cyr I"); see also Lawrence v. INS, 2001 WL 818141 at *3. The Second Circuit specifically held that the AEDPA and IIRIRA's elimination of discretionary § 212(c) relief would not be retroactively applied to pre-enactment guilty or nolo contendere pleas, but stated that it would apply to pre-enactment convictions after trial:
IIRIRA § 304(b), 110 Stat. 3009-597, repealed § 212(c) relief, and replaced it with 8 U.S.C. § 1229(b), which allows the Attorney General to cancel the removal of a deportable alien if, inter alia, the alien "has not been convicted of any aggravated felony." 8 U.S.C. § 1229b(a)(3).
The INS's warning against "an absurd superprospective result" is also unfounded. We do not rule today that application of the 1996 amendments to pre-enactment convictions has an impermissible retroactive effect. Rather, we hold that AEDPA § 440(d) and IIRIRA § 304 do not apply to pre-enactment guilty pleas or pleas of nolo contendere because such an application would upset reasonable, settled expectations and change the legal effect of prior conduct. Our ruling affects the narrow class of cases where an alien pled guilty to a criminal offense that qualifies as a removable crime. Discretionary relief as amended by AEDPA § 440(d) still applies to all aliens with convictions pre-dating its enactment and to all guilty pleas entered after its effective date. Likewise, cancellation of removal still applies to all aliens with convictions pre-dating IIRIRA and to all guilty pleas entered by aliens to deportable crimes after it took effect.
St. Cyr I, 229 F.3d at 420-21; accord, e.g., Lawrence v. INS, 2001 WL 818141 at *3.
In June 2001, the Supreme Court affirmed the Second Circuit's St. Cyr I decision. St. Cyr II, 533 U.S. at 326, 121 S.Ct. at 2293. The Supreme 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 II, 533 U.S. at 326, 121 S.Ct. at 2293. Applying the familiar test of Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483 (1994), the Supreme Court in St. Cyr II first found, as had the Second Circuit, that IIRIRA and its legislative history did not unambiguously indicate that the repeal of § 212(c) discretionary relief should apply retroactively. St. Cyr II, 533 U.S. at 314-26, 121 S.Ct. at 2287-93, aff'g, St. Cyr I, 229 F.3d at 412-16. The Supreme Court, as had the Second Circuit, proceeded to the "second step of Landgraf's retroactivity analysis," that is, whether the statute if applied retroactively "'attaches a new disability, in respect to transactions or considerations already past.'" St. Cyr II, 533 U.S. at 321, 121 S.Ct. at 2290-91; see also St. Cyr I, 229 F.3d at 417. The Supreme Court found, as had the Second Circuit, that applying IIRIRA's elimination of § 212(c) discretionary relief to those who pleaded guilty before IIRIRA's enactment would upset settled expectations:
IIRIRA's elimination of any possibility of § 212(c) relief for people who entered into plea agreements with the expectation that they would be eligible for such relief clearly "'attaches a new disability, in respect to transactions or considerations already past.'" Landgraf, 511 U.S. at 269, 114 S.Ct. 1483. Plea agreements involve a quid pro quo between a criminal defendant and the government. In exchange for some perceived benefit, defendants waive several of their constitutional rights (including the right to a trial) and grant the government numerous "tangible benefits, such as promptly imposed punishment without the expenditure of prosecutorial resources." There 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. Given the frequency with which § 212(c) relief was granted in the years leading up to AEDPA and IIRIRA, preserving the possibility of such relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.
. . . .
The potential for unfairness in the retroactive application of IIRIRA § 304(b) to people like Jideonwo and St. Cyr is significant and manifest. Relying upon settled practice, the advice of counsel, and perhaps even assurances in open court that the entry of the plea would not foreclose § 212(c) relief, a great number of defendants in Jideonwo's and St. Cyr's position agreed to plead guilty. Now that prosecutors have received the benefit of these plea agreements, agreements that were likely facilitated by the aliens' belief in their continued eligibility for § 212(c) relief, it would surely be contrary to "familiar considerations of fair notice, reasonable reliance, and settled expectations," Landgraf, 511 U.S. at 270, 114 S.Ct. 1483, to hold that IIRIRA's and subsequent restrictions deprive them of any possibility of such relief.
. . . .
Finally, the fact that § 212(c) relief is discretionary does not affect the propriety of our conclusion. There is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation. Prior to AEDPA and IIRIRA, aliens like St. Cyr had a significant likelihood of receiving § 212(c) relief. Because respondent, and other aliens like him, almost certainly relied upon that likelihood in deciding whether to forgo their right to a trial, the elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and severe retroactive effect. We find nothing in IIRIRA unmistakably indicating that Congress considered the question whether to apply its repeal of § 212(c) retroactively to such aliens. We therefore hold that § 212(c) relief remains available for aliens, like respondent, whose H:\OPIN\Gonzalez-Polanco 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 321-26, 121 S.Ct. at 2291-93 (citations fns. omitted, emphasis added); accord, e.g., Lawrence v. INS, 2001 WL 818141 at *4-5 (quoting St. Cyr II).
Here, the INS ordered Gonzalez-Polanco removed because of his March 1991 conviction for weapons and cocaine possession. (R. 68-70: IJ Oral Decision; R. 51:2/25/02 BIA Decision; R. 24:3/28/02 BIA Decision.) That conviction resulted from a guilty plea and obviously predates the 1996-1997 AEDPA and IIRIRA effective dates. Therefore under the Supreme Court's St. Cyr II decision, § 212(c) relief would apply retroactively to Gonzalez-Polanco if he "would have been eligible for § 212(c) relief at the time of [his] plea under the law then in effect." St. Cyr II, 533 U.S. at 326, 121 S.Ct. at 2293.
To have been eligible for 212(c) relief at the time of Gonzalez-Polanco's guilty pleas, an alien must have demonstrated that (1) he was admitted to the United States as a lawful permanent resident; (2) he resided in the United States continuously for at least seven years; and (3) his conviction was not for an "aggravated felony," for which he had served a term of imprisonment of five years or longer. 8 U.S.C. § 1182(c) (repealed 1996); see, e.g., Sol v. INS, 274 F.3d 648, 649 n. 3 (2d Cir. 2001), cert. denied, 122 S.Ct. 2624 (2002); Domond v. U.S. INS, 244 F.3d 81, 83-84 (2d Cir. 2001); Mapp v. Reno, 241 F.3d 221, 223 (2d Cir. 2001); Brito-Deleon v. Ashcroft, 188 F. Supp.2d 340, 346 (S.D.N.Y. 2002).
An alien is deportable upon conviction for any "aggravated felony," Anti-Drug Abuse Act of 1988, 102 Stat. 4469-4470, § 1227(a)(2)(A)(iii), without regard to when the offense was committed. 8 U.S.C. § 1227(a)(2)(A)(iii). "Aggravated felony" includes a drug trafficking crime. 8 U.S.C. § 1101(a)(43)(B). See Lawrence v. INS, 2001 WL 818141 at *5 n. 5.
Gonzalez-Polanco is ineligible for § 212(c) relief because he fails to meet the first requirement. At his removal hearings, he admitted that he entered the United States illegally and without inspection in December 1988. (R. 83:5/9/96 Removal Hearing Tr.; R. 231: INS Order to Show Cause Notice of Hearing.) Because Gonzalez-Polanco has never been a lawful permanent resident of the United States, he was never eligible for waiver of deportation relief under INA § 212(c), and therefore, his petition for habeas relief on § 212(c) grounds is denied. See, e.g., Reynoso v. Ashcroft, 01 Civ. 10840, 2002 WL 467576 at *4 (S.D.N.Y. Mar. 28, 2002) ("[Petitioner] is not eligible for Section 212(c) [waiver] relief because he was not lawfully admitted to the United States as a permanent resident."); Scott v. Speer, 99 Civ. 3622, 2000 WL 145338 at *5 n. 4 (S.D.N.Y. Feb. 7, 2000) ("To be eligible for a § 212(c) waiver, [petitioner] must have been a lawful permanent resident."); Brito-Deleon v. Ashcroft, 188 F. Supp.2d at 346 (petitioner "is not an LPR [lawful permanent resident]. Therefore, he was never eligible for a waiver of deportation" under § 212(c)) (record citation omitted).
II. GONZALEZ-POLANCO IS NOT ELIGIBLE FOR RELIEF UNDER INA § 212(h) BECAUSE HE WAS CONVICTED OF AN OFFENSE INVOLVING COCAINE
The waiver provision found in INA § 212(h) authorizes the Attorney General to waive certain criminal grounds of inadmissibility such as crimes involving moral turpitude, minor controlled substance offenses, and crimes involving prostitution and commercialized vice. 8 U.S.C. § 1182(h). Pursuant to § 212(h), the Attorney General has discretion to grant a waiver of removal "in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United H:\OPIN\Gonzalez-Polanco States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien. . . ." 8 U.S.C. § 1182(h)(1)(B).
IIRIRA amended § 212(h) to preclude a waiver of removal for a lawful permanent resident who, after lawful admittance, committed any of a broad list of offenses:
No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if . . . since the date of such admission the alien has been convicted of an aggravated felony. . . .8 U.S.C. § 1182(h), as amended by § 348(a) of IIRIRA, Pub.L. No. 104-208, 110 Stat. 3009-546 (1996) (emphasis added); see generally Jankowski-Burczyk v. INS, 291 F.3d 172, 175 n. 2 (2d Cir. 2002).
The BIA has interpreted § 348(a) (restricting § 212(h) relief) as applying only to lawful permanent residents. See In re Michel, No. A74 342 000, 21 I. N. Dec. 1101, 1104, 1998 WL 40407 (BIA Jan. 30, 1998) ("We find that the language of the amendment to section 212(h) of the Act provides plainly that the aggravated felony bar to eligibility for relief applies only to an alien who has previously been admitted to the United States for lawful permanent residence."). The Second Circuit recently held that "[t]he upshot of the 1996 amendment, as interpreted by the BIA and as applied by the INS, is that an LPR [lawful permanent resident] is categorically ineligible for a form of relief that a non-LPR would be eligible to seek, even if the two aliens committed the same aggravated felony and even if the citizenship or immigration status of their family members was identical." Jankowski-Burczyk v. INS, 291 F.3d at 175-76. The Second Circuit in Jankowski-Burczyk v. INS upheld the disparate treatment of LPRs and non-LPRs under § 212(h) as not violating the Equal Protection component of the Fifth Amendment. 291 F.3d at 178-81.
Gonzalez-Polanco asserted in his petition that his "case should follow the legal analysis in [the district court decision in] Jankowski v. INS, currently under review by a panel of the U.S. Court of Appeals for the Second Circuit." (Pet. at 1.) The Second Circuit reversed that decision.
Here, despite Gonzalez-Polanco's status as a non-lawful permanent resident, a waiver under INA § 212(h) is not available to him because the statute clearly states that "[t]he Attorney General may, in his discretion, waive the application of . . . subparagraph (A)(i)(II) of such subsection [(a)(2)] insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana . . ." INA § 212(h), 8 U.S.C. § 1182(h) (emphasis added). Thus, regardless of his status as a non-lawful permanent resident, a § 212(h) waiver is not available to Gonzalez-Polanco because he was convicted of possession of cocaine (not "simple possession of 30 grams or less of marijuana"). See Hernandez-Osoria v. Ashcroft, 01 Civ. 5545, 2002 WL 193574 at *4 (S.D.N.Y. Feb. 7, 2002) (Petitioner "is not eligible for a section 212(h) waiver of inadmissability because his convictions for attempted criminal sale of cocaine in the third degree and attempted criminal possession of cocaine in the fourth degree cannot be waived. Under section 212(h), waiver of inadmissability is only available for aliens who have been convicted of a controlled substance offense if the conviction is for a single offense of simple possession of 30 grams or less of marijuana. . . . Consequently, [petitioner] is not eligible to obtain a waiver of inadmissability under section 212(h)."); Brito-Deleon v. Ashcroft, 188 F. Supp.2d 340, 346 (S.D.N.Y. 2002) (petitioner not entitled to § 212(h) relief where his conviction was for attempted sale of a controlled substance, not simple possession of marijuana); Atkinson v. INS, 01 Civ. 3432, 2001 WL 1223481 at *6 (S.D.N.Y. Oct. 15, 2001) ("Regardless of whether an alien is legally or illegally in the country, § 212(h) provides no relief if he is deportable on the basis of a serious controlled-substance violation. Section 212(h) specifically excludes from relief all aliens subject to deportation under subsection 212(a)(2)(A)(i)(II), except for those convicted of possession of 30 grams or less of marijuana."); Custodio v. INS, No. 02 CV 155, 2002 WL 1608329 at *2 (D.Conn. June 28, 2002) ("It is clear that all individuals, LPRs and non-LPRs alike, who have been convicted of drug offenses other than "'a single offense of simple possession of 30 grams or less of marijuana'" cannot avail themselves of § 212(h)."). Therefore, because of his cocaine conviction, Gonzalez-Polanco is not eligible to obtain a waiver of inadmissability under INA § 212(h).
Section 212(a)(2)(A)(i)(II) states "aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States . . . [if convicted of] a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21). . . ." 8 U.S.C. § 1182(a)(2)(A)(i)(II).
III. GONZALEZ-POLANCO IS NOT ELIGIBLE FOR A "COMPASSIONATE" HEARING UNDER BEHARRY v. RENO
Gonzalez-Polanco argues that he is entitled to a hearing "to have the hardship [caused by his removal] to [his] children . . . examined" under United States treaty obligations and international law consistent with the recent holding in Beharry v. Reno, 183 F. Supp.2d 584, 604-05 (E.D.N.Y. 2002). (Dkt. No. 1: Pet. at 1.) This argument has no merit.
Judge Weinstein's decision in Beharry v. Reno held that IIRIRA's amendment to INA § 212(h), which as discussed above bars lawful permanent residents convicted of certain aggravated felonies from obtaining a waiver of removal under § 212(h), should be read in light of United States treaties and "customary" international law. Beharry v. Reno, 183 F. Supp.2d at 603-05. Gonzalez-Polanco asserts that under Beharry, the INS is required to provide a "compassionate" hearing to petitioners like him subject to deportation to determine any resulting hardship upon the alien's family or children. (Pet. at 1.)
Even if Beharry v. Reno were controlling law, its holding is narrow and the decision is factually distinguishable from Gonzalez-Polanco's case. Beharry v. Reno narrowly held that "[t]he statutory provision 'No waiver shall be provided . . . if . . . the alien has been convicted of an aggravated felony' should be narrowly construed so as to accord with international law. That can be done by ruling that § 212(h) waivers are available for aliens . . . . who meet its stringent requirements of seven years residence and 'extreme hardship' to family — if these aliens have been convicted of an 'aggravated felony' as defined after they committed their crime, but which was not so categorized when they committed the crime." Beharry v. Reno, 183 F. Supp.2d at 605. Beharry v. Reno expressly held that the other provisions of INA § 212(h) are "unchallenged and unaffected by this ruling" and stated that "[t]his interpretation will affect only a small subset of the aliens who would otherwise be ineligible for Section 212(h) relief. It fulfills the goal of bringing the statute into compliance with international law, while doing so in the least obtrusive way possible." Id. The petitioner in Beharry was a lawful permanent resident convicted of an aggravated felony, while Gonazlez-Polanco is a non-lawful permanent resident convicted of a controlled substance offense other than simple possession of 30 grams or less of marijuana.
Beharry has been appealed to the Second Circuit, Dkt. No. 02-2171. The Government's brief in Beharry was filed in June; no argument date has been set yet.
The Court notes that only four cases cite to Beharry — three merely for information in Beharry about statutes or treaties, and the fourth disagreeing with its holding. See Guerra v. Ashcroft, No. Civ. A. 301CV1562, 2002 WL 1359706 at *3 n. 4 (N.D.Tex. June 19, 2002) ("The magistrate judge respectfully disagrees with the [Beharry] court's reasoning and application of international law and therefore finds it unpersuasive in implying that [petitioner] has standing in this case.").
Beharry held that the INS could still deport such a petitioner, but only after "a hearing at which a broad discretion to exclude may be exercised by the INS. Id.
Moreover, while Beharry dealt with a changed definition of aggravated felony, § 212(h)'s waiver for drug offenses (limited only to those involving marijuana) was not changed by the AEDPA or IIRIRA but rather predated Gonzalez-Polanco's 1991 cocaine conviction.
This Court declines to extend Beharry v. Reno to the facts of this case. Gonzalez-Polanco's application for a "compassionate" hearing before the INS based on the Beharry decision is denied.
CONCLUSION
For the reasons stated above, Gonzalez-Polanco's habeas petition is DENIED. Because Beharry v. Reno, on which Gonzalez-Polanco relies, is pending before the Second Circuit, this Court issues a certificate of appealability limited to the issue of whether Beharry was correctly decided and, if so, whether its reasoning would apply to petitioner here. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604 (2000) (certificate of appealability should issue where "reasonable jurists could debate whether or, for that matter, agree that the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further"); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (certificate of appeal ability should issue "if the issues involved in a petition are debatable among jurists of reason, could be resolved in a different manner, or are adequate to deserve encouragement to proceed further"), cert. denied, 531 U.S. 873, 121 S.Ct. 175 (2000).
SO ORDERED.