Opinion
01 Civ. 4384(JSR)(JCF). United States
March 11, 2002
David Van Muraskin, Esq., New York, New York.
Krishna Patel, Esq., Assistant United States Attorney, New York, New York.
Richard Hibbert, No. 99R7094, Gouverneur Correctional Facility Gouverneur, New York.
In light of his attorney's suspension, this Report and Recommendation is being sent to the petitioner at his last known address. Mr. Muraskin is directed to forward a copy to the petitioner as well.
Richard Hibbert brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, arguing that he is entitled to apply for a discretionary waiver of deportability pursuant to section 212(c) of the Immigration and Nationality Act of 1952 (the "INA"), 8 U.S.C. § 1182(c) (1996). He therefore requests remand of this matter to the Board of Immigration Appeals (the "BIA") to hold a hearing on the merits of his application for relief under section 212(c). For the reasons that follow, I recommend that the petition be dismissed.
Background
Mr. Hibbert is a native and citizen of Jamaica. (R. 105, 130). He was admitted to the United States as a lawful permanent resident on June 28, 1971. (R. 130). In August 1996, he pled guilty to the crime of attempted criminal sale of a controlled substance in the third degree in New York State Supreme Court, Bronx County, and judgment of conviction was entered November 1, 1996. (R. 99, 130). The conviction rested on criminal conduct that had occurred on June 8, 1996. (Petitioner/Plaintiff Richard Hibbert [sic] Reply in Support of Habeas Corpus Relief ("Pet. Reply"), Exh. B). Mr. Hibbert was sentenced to five years of probation. (R. 99).
"R." refers to the copy of the record of the petitioner's administrative removal proceedings, as certified by the Executive Office for Immigration Review of the United States Department of Justice, and attached as Exh. A to the letter of Krishna R. Patel, dated Aug. 31, 2001.
In January 2000, the Immigration and Naturalization Service ("INS") served Mr. Hibbert with a Notice to Appear (Form I-862) and placed him in removal proceedings pursuant to section 237(a)(2)(A)(iii) and (B)(i) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii) and (B)(i), for having been convicted of a controlled substance violation and an aggravated felony. (R. 128-30).
INA § 237(a)(2)(A)(iii) requires the deportation of "[a]ny alien who is convicted of an aggravated felony at any time after admission," 8 U.S.C. § 1227(a)(2)(A)(iii), and INA § 237(a)(2)(B)(i) requires the deportation of "[a]ny alien who at any time after admission has been convicted of a violation of . . . 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), other than a single offense involving possession for one's own use of 30 grams or less of marijuana." 8 U.S.C. § 1227(a)(2)(B)(i).
INA § 101(a)(43)(B) defines an "aggravated felony" as: "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18). 8 U.S.C. § 1101(a)(43)(B).
In hearings before an Immigration Judge ("IJ") on March 3, 2000 and April 21, 2000 (R. 72-88), Mr. Hibbert sought a discretionary waiver of deportability pursuant to section 212(c), but the IJ found that the petitioner was ineligible for the relief sought and ordered him removed to Jamaica. (R. 66-69). On November 22, 2000, the BIA dismissed Mr. Hibbert's appeal, and concluded that the petitioner was ineligible for section 212(c) relief. (R. 2-3).
The petitioner then filed the instant petition for a writ of habeas corpus.
Discussion
Mr. Hibbert claims that he is eligible to apply for section 212(c) discretionary relief from removal because the Antiterrorism and Effective Death Penalty Act (the "AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act (the "IRRIRA") do not apply to him. First, he contends that the IRRIRA does not apply because he committed his crime and pled guilty prior to its enactment. The petitioner's second claim is that section 440(d) of the AEDPA contains no language making this provision retroactively applicable to him. Last, although Mr. Hibbert's petition is not clear on this point, the petitioner seems to claim that although section 440(d) of the AEDPA bars section 212(c) relief to certain aliens in deportation proceedings, this does not apply to him because he is subject to removal rather than deportation proceedings. (Verified Petition for a Writ of Habeas Corpus ("Pet") at 4-14). The petitioner's claims have no merit. Prior to the enactment of the AEDPA in April 1996, discretionary relief was available through a waiver of deportation, which allowed the Attorney General to waive the grounds for deportation under certain conditions in the case of a lawfully admitted permanent resident in deportation proceedings. See 8 U.S.C. § 1182(c) (repealed 1996). An alien was eligible to apply for a section 212(c) waiver once he had accrued seven years of lawful, permanent residence in the United States. So long as the alien met the residence requirements and had not been convicted of an aggravated felony, for which he had to serve a term of imprisonment of at least five years, the Attorney General could choose to exercise his discretion to waive deportation. See 8 U.S.C. § 1182(c) (repealed 1996).
When Congress enacted the AEDPA in April 1996, it made several changes to former section 212(c). Specifically, section 440(d) of the AEDPA, Pub.L. No. 104-132, 110 Stat. 1214, 1277 (1996), greatly expanded the list of criminal offenses that bar deportable aliens from section 212(c) eligibility to include, for example, all aggravated felonies regardless of the term of imprisonment. This provision became effective on April 24, 1996. See § 440, 110 Stat. at 1278 (1996). Subsequently, in September 1996 Congress enacted the IRRIRA, Pub.L. No. 104-208, 110 Stat. 3009-546 (1996). The IIRIRA repealed section 212(c) altogether and replaced it with a different form of discretionary relief from deportation, known as cancellation of removal. See IIRIRA § 304(b), 110 Stat. at 3009-597; codified at 8 U.S.C. § 1229b (1998). Cancellation of removal is not available to any alien who has been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3).
A. Applicability of the IRRIRA
The petitioner's position is that at the time he committed his offense on June 8, 1996 and when he pled guilty on August 12, 1996, he was eligible for section 212(c) relief because the IRRIRA had not yet been enacted. Although he was sentenced on November 1, 1996, after the IRRIRA came into effect, he argues that IRRIRA section 304(b) should not apply to him because it does not contain retroactive language. (Pet. at 7-9).
This issue was squarely addressed by the Second Circuit in St. Cyr v. Immigration and Naturalization Service, 229 F.3d 406 (2d Cir. 2000), aff'd, 533 U.S. 289 (2001). In that case, the Court held that IIRIRA section 304 as applied to a guilty or nolo contendere plea that predates the statute's enactment has an impermissible retroactive effect. The court reasoned that, because there is sufficient evidence that a legal resident accused of a crime that renders him or her removable from this country would have conformed his or her conduct according to the availability of relief when he or she pled guilty, AEDPA SS§ 440(d) and IIRIRA § 304 would severely upset settled expectations were it applied retroactively to pre-enactment guilty pleas. A repeal of the eligibility to apply for relief from removal would attach new legal consequences to a legal resident's guilty plea to a removal crime.
Id. at 420. The United States Supreme Court subsequently affirmed that decision. St. Cyr v. Immigration and Naturalization Service, 533 U.S. 289 (2001).
Therefore, because the petitioner pled guilty before the enactment of the IIRIRA, section 304 does not apply to him.
Although the petitioner is thus correct on this point, it is not sufficient to entitle him to the relief requested, as will be discussed below.
B. Applicability of the AEDPA
The petitioner also asserts that section 440(d) of the AEDPA likewise does not apply to him because Congress did not intend it to be retroactive (Pet. At 8). This claim fails because there is no issue of retroactivity in this case.
According to St. Cyr, the critical moment to assess whether the AEDPA applies to an alien and whether he is eligible for section 212(c) relief is the date of the guilty plea. 229 F.3d 420-21. Here the petitioner pled guilty after the enactment of the AEDPA and section 440(d) therefore applies to him.
Finally, the petitioner claims that the AEDPA does not apply to him because he is subject to removal proceedings and not to deportation proceedings. The IRRIRA eliminated statutory provisions governing separate deportation and exclusion proceedings and created a single set of administrative proceedings called "removal" proceedings. See IRRIRA § 304, 8 U.S.C. § 1229b (1999). IRRIRA section 309(d)(2) states that "any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation." IRRIRA § 309(d)(2), P.L. 104-208, 110 Stat. at 3009-627, 8 U.S.C. § 1101 note (d)(2). Because the petitioner's proceedings started after the enactment of the IRRIRA, they are called "removal proceedings" and not "deportation proceedings." But since removal proceedings encompass both deportation and exclusion, AEDPA section 440(d), which refers to "deportation proceedings," applies to the petitioner. And, because AEDPA § 440(d) eliminated section 212(c) discretionary relief from deportation, the petitioner is not eligible for such relief.
C. Equal Protection
Mr. Hibbert initially claimed that AEDPA section 440(d) bars section 212(c) relief to lawful permanent residents in deportation proceedings but permits such relief for those in exclusion proceedings, and thereby violates the Equal Protection Clause of the Fourteen Amendment. However, he subsequently withdrew this argument (Pet. Reply at 7), and it need not be addressed on the merits.
Conclusion
For the reasons set forth above, I recommend that Mr. Hibbert's petition for a writ of habeas corpus be dismissed.
David Van Muraskin, attorney for the petitioner, was suspended from the practice of law in the State of New York on October 25, 2001, In Re Muraskin, 286 A.D.2d 186, 731 N.Y.S.2d 458 (1st Dep't. 2001), and subsequently suspended from the bar of this Court as well. His suspension occurred after he had submitted both Mr. Hibbert's petition for a writ of habeas corpus and the reply in support of habeas corpus relief. Mr. Muraskin was suspended for reasons unrelated to his competence, and his suspension therefore does not affect the disposition of this case.
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this Report and Recommendation.
Such objections shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Jed S. Rakoff, Room 1340, and to the undersigned, Room 1960, 500 Pearl Street New York, New York 10007. Failure to file timely objections will preclude appellate review.