Opinion
01 CIV. 10840 (DLC).
March 28, 2002
Jorge Guttlein, Aranda Guttlein, New York, NY, For Petitioner.
Megan L. Brackney, Assistant United States Attorney, United States Attorney's Office, New York, NY, For Respondents.
OPINION AND ORDER
Nelson Antonio Reynoso ("Reynoso"), an alien currently in the custody of the Immigration and Naturalization Service ("INS"), petitions this Court for a writ of habeas corpus reversing a deportation order entered on June 19, 2000. Reynoso asserts that the INS is estopped from deporting him on the basis of a 1990 conviction involving a controlled substance, because the INS had knowledge of the conviction when he was granted a visa for permanent resident status in 1994. In the alternative, Reynoso argues that his deportation proceedings should be reopened, and a hearing held on the merits of his application pursuant to Section 212(c) of the Immigration and Naturalization Act ("INA"). 8 U.S.C. § 1182(c) (repealed 1996). For the reasons that follow, the petition is denied.
BACKGROUND
Reynoso was born on April 24, 1966, and is a native and citizen of the Dominican Republic. He first entered the United States without inspection, from Mexico, in 1988. On May 3, 1990, he entered a plea of guilty to a charge of attempted criminal sale of a controlled substance, specifically cocaine, in the third degree, pursuant to New York Penal Law Section 220.39, and received a sentence of two years of community service and five years of probation.
On July 19, 1994, Reynoso was fingerprinted by the New York City Police Department for a criminal history search, known as a good conduct certificate, which is required of visa applicants. The resulting report indicated Reynoso's prior arrest and conviction for attempted criminal sale of cocaine. On August 2, 1994, Reynoso applied for lawful permanent resident status, as the spouse of a United States citizen, averring on the application under penalty of criminal prosecution and/or deportation, that he had never been arrested or convicted of any crime. On August 4, 1994, the State Department issued Reynoso an immigrant visa for lawful permanent resident status despite his prior drug conviction. Reynoso left the United States sometime in February 2000, and on March 1, 2000, he attempted to reenter the United States as a lawful permanent resident at John F. Kennedy International Airport in New York. Upon arrival, the INS detained him and gave him a "deferred inspection" notice. On April 26, 2000, Reynoso voluntarily appeared, as required by the March 1 notice, and was remanded by the INS to await removal proceedings.
Reynoso was served on May 24, 2000, with papers and a notice to appear, charging him as removable pursuant to: (1) Section 212(a)(2)(A)(i)(II) of the INA, as an alien who has been convicted of a controlled substance offense; (2) Section 212(a)(2)(C) of the INA, as an alien suspected or known to be an illicit trafficker in a controlled substance; (3) Section 212(a)(6)(C)(i) of the INA, as an alien who has sought to procure a visa or other document of admission to the United States under the INA by fraud or willful misrepresentation of a material fact; and (4) Section 212(a)(7)(A)(i)(I) of the INA, as an alien who, at the time of application for admission, was not in possession of a valid immigrant visa, reentry permit, or other valid entry document.
On May 30, 2000, a removal hearing commenced before Immigration Judge Alan L. Page. On June 6 and 19, 2000, the hearing resumed, with Reynoso represented by counsel. Counsel conceded Reynoso's conviction for the attempted criminal sale of a controlled substance in the third degree.
Reynoso claimed principally that the Government should be estopped from deporting him because it was in possession of his criminal record when it originally issued him a visa, and nearly six years passed before the Government discovered its mistake. Judge Page ruled that equitable estoppel did not apply against the Attorney General in this case, and that based on his prior conviction, Reynoso was not in possession of a valid immigrant visa. Accordingly, he ordered that Reynoso be removed from the United States.
On June 29, 2000, Reynoso appealed to the Board of Immigration Appeals ("BIA"). On November 16, 2000, the BIA dismissed Reynoso's appeal, holding that it was without authority to apply the doctrine of equitable estoppel against the INS so as to preclude it from taking a lawful course of action it is empowered to pursue by statute and regulation. Additionally, the BIA noted that Reynoso was unable to establish the necessary common law elements of estoppel. The BIA held that Reynoso was not lawfully admitted for permanent resident status within the meaning of Section 212(c), and that he was unable to satisfy another requirement for Section 212(c) relief, seven years of permanent resident status.
On December 3, 2001, Reynoso filed this petition for a writ of habeas corpus. In connection with this petition, Reynoso argues that because the INS had knowledge of his 1990 conviction when it granted him permanent resident status, it should be estopped from deporting him. Alternatively, Reynoso asks for an order reopening his deportation proceedings pursuant to Section 212(c).
On December 7, 2000, Reynoso petitioned for review of the BIA decision to the United States Court of Appeals for the Second Circuit. Reynoso's motion before the Court of Appeals for a stay of deportation was granted on March 30, 2001. Because the Supreme Court in INS v. St. Cyr, 121 S.Ct. 2271 (2001), and Calcano-Martinez v. INS, 121 S.Ct. 2268 (2001), held that petitioners who are found to have committed aggravated felonies may not petition for review to the Circuit courts, but may petition for habeas corpus relief in the district courts, the parties stipulated on March 7, 2001, to the withdrawal of the petition before the Court of Appeals.
DISCUSSION
A. Standard of Review
Habeas corpus jurisdiction over the claims made here is "governed by a complex statutory regime that reflects the interaction of several different pieces of legislation." Atkinson v. INS, No. 01 Civ. 3432 (MBM), 2001 WL 1223481, at *3 (S.D.N.Y. Oct. 15, 2001); see also Merisier v. INS, No. 00 Civ. 0393 (GBD) (AJP), 2000 WL 1281243, at *4-7 (S.D.N.Y. Sept. 12, 2000) (describing the 1996 changes to the immigration laws). With the enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") in 1996, habeas review of deportation orders is limited to review under Title 28, United States Code, Section 2241 ("Section 2241"). INS v. St. Cyr, 121 S.Ct. 2271, 2282 (2001); see also Henderson v. INS, 157 F.3d 106, 112 (2d Cir. 1998); Jean-Baptiste v. Reno, 144 F.3d 212, 219-20 (2d Cir. 1998). While habeas review of certain questions of law presented by deportation orders is proper, Henderson, 157 F.3d at 112, 122, there is no jurisdiction to review discretionary determinations of the Attorney General, see, e.g., Atkinson, 2001 WL 1223481, at *5; Sol v. INS, No. 97 Civ. 5994 (RPP), 2000 WL 1154048, at *1 and n. 1 (S.D.N.Y. Aug. 15, 2000), aff'd, 274 F.3d 648 (2d Cir. 2001).
B. Estoppel
Reynoso claims that the INS erred in the application of the law of estoppel to the facts of this case. Even if this Court has jurisdiction under Section 2241 to review the application of law to facts in the course of a decision to deport or remove an alien, the petitioner's claim must be denied. "The principle of equitable estoppel is not applied to the Government on the same terms as it is to private citizens." United States v. Boccanfuso, 882 F.2d 666, 669 (2d Cir. 1989). The different standard for estoppel against the Government "springs from the tenet that estoppel would frustrate the Government's ability to enforce the law and, in turn, undermine the public interest in full enforcement of the law." Id. The remedy of equitable estoppel "is not available against the government except in the most serious of circumstances, and is applied with the utmost caution and restraint." Rojas-Reyes v. INS, 235 F.3d 115, 126 (2d Cir. 2000) (citations omitted); see also Drozd v. INS, 155 F.3d 81, 90 (2d Cir. 1998); Dhine v. Slattery, 3 F.3d 613, 618 (2d Cir. 1993) (estoppel against the Government in immigration cases only in "truly extraordinary cases"). Estoppel against the Government requires a showing of "affirmative misconduct" on the part of the Government, Rojas-Reyes, 235 F.3d at 126 (citation omitted), and a demonstration of reasonable and detrimental reliance on the Government's misrepresentation by the party seeking estoppel. City of New York v. Shalala, 34 F.3d 1161, 1168 (2d Cir. 1994); see also Heckler v. Cmty. Health Serv., 467 U.S. 51, 63 (1984) ("the general rule [is] that those who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law"); INS v. Miranda, 459 U.S. 14, 19 (1982) (per curiam); Azizi v. Thornburgh, 908 F.2d 1130, 1136 (2d Cir. 1990); Long Island Radio Co. v. Nat'l Labor Relations Bd., 841 F.2d 474, 478 (2d Cir. 1988). Affirmative misconduct requires more than mere negligence. Azizi, 908 F.2d at 1136. The Second Circuit has found the INS to be estopped in only very limited circumstances. See Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir. 1976) (INS failed to give a warning required by its own regulations).
Reynoso has identified no error of law in the INS's rejection of his estoppel claim. Nor has he identified any error in the application of the law of estoppel to Reynoso. He does not identify any affirmative misconduct in which the Government engaged. Indeed, there is no evidence that the INS, as opposed to the State Department which was responsible for issuing the visa, was even aware of Reynoso's conviction prior to his attempted entry into the United States on March 1, 2000. Absent some indication of affirmative misconduct, the INS has statutory authority to remove Reynoso because of his prior conviction and cannot be estopped from doing so. See, e.g., Dhine, 3 F.3d at 618 (failure to "inspect" petitioner during five visits to INS offices did not estop INS from deporting petitioner).
To the extent Reynoso relies on Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir. 1976), it has been limited to its facts. Goldberg v. Weinberger, 546 F.2d 477, 481 n. 5 (2d Cir. 1976).
In any event, Reynoso is removable pursuant to 8 U.S.C. § 1101(a)(13)(C), regardless of whether he was issued a visa and granted lawful permanent resident status. The BIA has held that, under the INA, a lawful permanent resident who has been convicted of a controlled substance offense and attempts to reenter the country is regarded as an alien seeking admission and is therefore removable. In Re Collado, 21 I. N. Dec. 1061 (BIA Dec. 18, 1997). All reasonable interpretations of the INA by the BIA are entitled to deference. Michel v. INS, 206 F.3d 253, 260 (2d Cir. 2000); see also Ferreras v. Ashcroft, 160 F. Supp.2d 617, 623 (S.D.N.Y. 2001) (deferring to BIA's interpretation of 8 U.S.C. § 1101(a)(13)(C) in Matter of Collado).
C. Section 212(c)
With respect to Reynoso's contention that he is eligible for Section 212(c) relief, there is no jurisdiction to review the discretionary determination made in Section 212(c) proceedings. Reynoso has identified no legal error made by the INS in its Section 212(c) decision.
Prior to 1996, Section 212(c) gave the Attorney General discretion to waive the deportation of certain deportable lawful permanent resident aliens. 8 U.S.C. § 1182(C) (repealed 1996). IIRIRA Section 304(b) repealed Section 212(c) relief, and replaced it with 8 U.S.C. § 1229b, 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 Supreme Court has held, however, 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, 121 S.Ct. at 2293. In order to qualify for Section 212(c) relief prior to 1996, an alien had the burden of proving, inter alia, that: (1) he was lawfully admitted as a permanent resident of the United States; (2) he had an unrelinquished domicile of seven consecutive years; and (3) he had not committed an aggravated felony for which he had served a term of imprisonment of at least five years. 8 U.S.C. § 1182(c) (repealed 1996); see Domond v. INS, 244 F.3d 81, 83 (2d Cir. 2001).
Reynoso is not eligible for Section 212(c) relief because he was not lawfully admitted to the United States as a permanent resident. Although Reynoso's visa application was mistakenly approved by the State Department, Reynoso was ineligible for a visa due to his prior controlled substance conviction. 8 U.S.C. § 1182(a)(2)(A)(i)(II) (an alien convicted of a crime relating to a controlled substance is ineligible for a visa or admission into the United States). The BIA has held that "[a]dmission is not lawful if it is regular only in form. The term `lawfully' denotes compliance with substantive legal requirements, not merely procedural regularity." Matter of S-, 19 I. N. Dec. 851, 854 (BIA Dec. 19, 1988).
Moreover, Reynoso was not granted permanent resident status until four years after he entered a plea of guilty to the controlled substance charge on May 3, 1990. He was therefore not eligible for Section 212(c) relief at the time of his plea, as required by St. Cyr, 121 S.Ct. at 2293 ("§ 212(c) relief remains available for aliens . . . who . . . would have been eligible for § 212(c) relief at the time of their plea).
Finally, Reynoso is also unable to satisfy the requirement of "seven years of lawful unrelinquished domicile" in the United States. Vargas v. INS, 938 F.2d 358, 360-61 (2d Cir. 1991). Reynoso received his visa on August 4, 1994, and on June 19, 2000, he conceded his removability to Judge Page. At the time of concession, Reynoso had accrued less than six years of purportedly lawful domicile in the United States. Contrary to his assertion, Reynoso cannot continue to accrue time towards the required seven years while going through the appeals process, because he has conceded his removability. Vargas, 938 F.2d at 361 ("an alien cannot become eligible for discretionary relief through subsequent accrual of time towards the seven-year threshold, once he has conceded that he is deportable") (emphasis omitted).
CONCLUSION
Reynoso cannot establish the requirements for the application of equitable estoppel against the Government, and he is ineligible for relief pursuant to Section 212(c). Accordingly, his petition is denied. Because Reynoso's petition has been considered pursuant to 28 U.S.C. § 2241, the certificate of appealability requirement does not apply. See Murphy v. United States, 199 F.3d 599, 601 n. 2 (2d Cir. 1999) (noting that certificate of appealability requirement is inapplicable to petitions filed pursuant to 28 U.S.C. § 2241). The Clerk of Court shall close the case.
SO ORDERED.