Opinion
04 Civ. 0429 (RMB) (AJP).
February 24, 2005
REPORT AND RECOMMENDATION
To the Honorable Richard M. Berman, United States District Judge:
Petitioner Patrick Thompson, a.k.a. Patrick Thomas, brings 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"). Thompson's petition alleges that the BIA erred when it found him ineligible for discretionary relief from deportation under § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c) (repealed 1996). (Dkt. No. 1: Pet. ¶¶ 24-29; Dkt. No. 10: Thompson Br. at 1-2.)
The issue before the Court is one that the Second Circuit left open in Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004) — whether an alien who was found guilty after trial before the 1996 AEDPA/IIRIRA repeal of § 212(c) relief must show actual individual reliance on the continued availability of § 212(c) relief or whether a "categorical" approach should be applied to all such aliens. For the reasons discussed below, in order for Restrepo to not swallow the holding in Rankine v. Reno, 319 F.3d 93 (2d Cir.), cert. denied, 540 U.S. 910, 124 S. Ct. 287 (2003), the Court finds that an individual approach should be utilized. Accordingly, the matter should be remanded to the BIA for findings as to whether Thompson actually relied on the continued availability of § 212(c) relief.
FACTS
In August 1990, Thompson entered the United States from Jamaica as a lawful permanent resident. (Dkt. No. 1: Pet. ¶¶ 8, 14; Dkt. No. 7: Return ¶ 1; Dkt. No. 7: McNeela Aff. Ex. A at 1: "Immigrant Visa and Alien Registration.").
McNeela Aff. Ex. A contains documents from the INS record, and will be cited hereafter as "A ____," referring to the page number in Ex. A.
On August 31, 1993, Thompson was found guilty after a jury trial in state court in Philadelphia of possession of a controlled substance (marijuana) and of manufacturing, delivering or possessing with intent to manufacture or deliver a controlled substance (Pet. ¶ 19; Return ¶ 2; A8: "Criminal History Record") and was sentenced to six months probation (Pet. ¶ 19; Return ¶ 2; A7: "Criminal Transcript").
On May 15, 1998, Thompson applied for reentry to the United States as a returning lawful permanent resident after a two-week trip to Jamaica for his grandmother's funeral. (Return ¶ 3; A16-17: Immigration and Naturalization Service ("INS") Record of Sworn Statement in Affidavit Form, by Thompson.) At the airport, Thompson was interviewed by the immigration inspector who asked, among other questions, whether he was aware that his criminal record would "cause a problem with [him] returning to the United States." (A19; see Return ¶ 3.) Thompson replied that he was not aware of any negative consequences of his trip to Jamaica based on information from his attorney prior to going to Jamaica. (A19;see Return ¶ 3.)
On May 16, 1998, the INS issued a Notice to Appear, charging that Thompson was removable as an alien who had been convicted of violating a law relating to a controlled substance pursuant to INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), and as an alien who has been "an illicit trafficker in any . . . controlled substance" pursuant to INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C). (Return ¶ 4; A9-12: Notice to Appear; Pet. ¶ 20.)
As of March 1, 2003, pursuant to the Homeland Security Act, the INS was abolished and its authority and functions were transferred to the newly-created Department of Homeland Security. (See Pet. ¶ 9.) See also, e.g., Campbell v. Ganter, 04-CV-2975, ___ F. Supp. 2d ___, 2004 WL 3105935 at *3 (E.D.N.Y. Dec. 7, 2004); Mattis v. Ashcroft, 04 Civ. 2333, 2004 WL 2471314 at *1 n. 1 (S.D.N.Y. Nov. 3, 2004). For purposes of this Report and Recommendation, the Court refers to the agency as the INS.
INS Removal Proceedings
On July 1, 1998, the INS commenced Thompson's removal hearing before an immigration judge ("IJ") in New York City. (Return ¶ 4; A21-24: 7/1/98 Removal Hearing Tr.) The hearing was adjourned several times (see A25-45) until September 9, 1999 when the IJ finally heard the merits of the claim. (A46-52; see Pet. ¶ 21; Return ¶ 4.) At the hearing, at which he was represented by counsel, Thompson sought relief from deportation (see A49-50) 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. In his brief to the IJ, Thompson claimed that the repeal of § 212(c) by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA") should not be applied retroactively to him. (A56-57: Thompson Br. to IJ.)
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 felon[y]," for which he or she had served a term of imprisonment of five years or longer. 8 U.S.C. § 1182(c) (repealed 1996); see, e.g., Gonzalez-Polanco v. INS, 02 Civ. 2734, 2002 WL 1796834 at *2 n. 5 (S.D.N.Y. Aug. 5, 2002) (Peck, M.J.) ( cases cited therein).
At the conclusion of the September 9, 1999 hearing the IJ, in an oral decision, ordered Thompson removed and denied as "pretermitted" Thompson's claims for relief. (A50, A58-62: 9/9/99 IJ Oral Decision.) Specifically, the IJ held that IIRIRA applied to Thompson and his reliance on the Second Circuit decision inHenderson v. INS, 157 F.3d 106 (2d Cir. 1998), cert. denied, 526 U.S. 1004, 119 S. Ct. 1141 (1999), was inapposite. (A61: 9/9/99 IJ Oral Decision.)
The Second Circuit in Henderson v. INS held that AEDPA § 440(d), which restricted the availability of § 212(c) discretionary relief, did not apply to aliens in removal proceedings already initiated at the time of the AEDPA's 1996 enactment. 157 F.3d at 129. Thompson argued that since the INScould have initiated his removal proceeding before the AEDPA's enactment, his case should be considered to have been in the "pipeline" for purposes of the Henderson holding. (See A56-57: Thompson Br. to IJ.) The IJ rejected this argument, stating that Henderson only applied to proceedings that actually had been brought prior to 1996, not that could have been brought but had not been. (A60-61.)
The IJ also held that Thompson was ineligible for § 240A cancellation of removal, because he did not satisfy the statutory requirements of continuous residency in the United States; the IJ found § 212(h) did not apply to Thompson because it required only one criminal conviction, whereas Thompson had been convicted of two crimes. (A59-60, 61-62; see Pet. ¶ 21; Return ¶ 5.) Those provisions are not at issue in this habeas petition.
On October 8, 1999, represented by counsel, Thompson appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). (A64-66: Notice of Appeal to the BIA; Return ¶ 6.) In January 2001, Thompson filed his BIA appeal brief arguing that § 212(c) relief should be available to him, citing the Second Circuit's decision in St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000). (A67-70: Thompson BIA Br.; Pet. ¶ 22; Return ¶ 6.)
On March 31, 2003, the BIA affirmed the IJ's decision and held that INS v. St. Cyr did not apply to Thompson's case because Thompson had been convicted after a jury trial whereas St. Cyr's holding that the AEDPA/IIRIRA repeal of § 212(c) did not apply retroactively was limited to aliens who had plead guilty. (A71-72; see also Pet. ¶ 22; Return ¶ 7.) See INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001).
Thompson's Present § 2241 Habeas Petition
On January 20, 2004, represented by counsel, Thompson filed this habeas corpus petition pursuant to 28 U.S.C. § 2241. (Dkt. No. 1: Pet.; see Return ¶ 8.) Thompson challenges the BIA's decision affirming the IJ's decision that he was ineligible for § 212(c) relief. (Pet. ¶ 25-29.) Thompson claims that he could have made an affirmative application for § 212(c) relief after his conviction in 1993 and before 1996, when the AEDPA/IIRIRA repealed § 212(c). (Pet. ¶¶ 27-28.) Thompson asserts he did not make his § 212(c) application in reliance on its continued existence, and therefore that retroactive application of the AEDPA/IIRIRA repeal of § 212(c) would be impermissible as to him. (Pet. ¶¶ 28-29.)
An alien may make an affirmative application for § 212(c) relief by filing an application for such relief before any removal proceedings are initiated by the Immigration authorities. 8 C.F.R. § 212.3(a)(1). Alternatively, an alien may make a defensive application for § 212(c) relief by applying for the discretionary relief once removal proceedings have commenced. 8 C.F.R. § 212.3(a)(2). (See also fn.15 below.)
Thompson made a second claim in his habeas petition (Pet. ¶¶ 30-33), which he later withdrew. (See Dkt. No. 4: 2/17/2004 Order; see also Return ¶ 9.)
Thompson's petition was placed on the Court's suspense docket at the parties' request (Dkt. No. 8: Stip. Order), to await the Second Circuit's decision in Restrepo (see Point II.C below); the parties briefed the impact of Restrepo after the Second Circuit rendered its decision. (See Dkt. Nos. 10, 12-13.)
ANALYSIS
I. THOMPSON HAS EXHAUSTED HIS ADMINISTRATIVE REMEDIES
"A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1); see Foster v.INS, 376 F.3d 75, 77 (2d Cir. 2004) ("Before an alien can seek judicial review of his removal decision, the INA requires that he exhaust all administrative remedies available to him."); Marrero Pichardo v. Ashcroft, 374 F.3d 46, 52 (2d Cir. 2004) (" 8 U.S.C. § 1252(d)(1) requires a habeas petitioner to exhaust all available agency remedies before appealing the IJ's decision to federal court."). "Statutory exhaustion requirements such as § 1252(d)(1) are 'mandatory, and courts are not free to dispense with them.'" Foster v. INS, 376 F.3d at 77 (quoting United States v. Gonzalez-Roque, 301 F.3d 39, 47 (2d Cir. 2002));Marrero Pichardo v. Ashcroft, 374 F.3d at 52. This statutory limitation on the jurisdiction of the federal courts extends to habeas petitions seeking review of immigration decisions. Theodoropoulos v. INS, 358 F.3d 162, 171 (2d Cir.) ("[W]e hold that, by its plain language, § 1252(d)'s mandate . . . applies to all forms of review including habeas corpus."),cert. denied, 125 S. Ct. 37 (2004); see Filsaime v.Ashcroft, 393 F.3d 315, 318 (2d Cir. 2004); Caesar v.Ashcroft, 04 Civ. 8195, 2005 WL 14686 at *6, ___ F. Supp. 2d ___ (S.D.N.Y. Jan. 3, 2005) ("[I]n the habeas corpus context as in other contexts, federal courts may not consider claims that the immigration authorities have not had a chance to rule on first."). One of the purposes of the exhaustion requirement is to ensure that "the INS, as the agency responsible for construing and applying the immigration laws and implementing regulations, has had a full opportunity to consider a petitioner's claims before they are submitted for review by a federal court."Theodoropoulos v. INS, 358 F.3d at 171.
The INS contends that Thompson failed to exhaust administrative remedies because he did not raise the argument to the IJ or the BIA "that he detrimentally relied on the 'continued existence' of § 212(c) in failing to make an affirmative motion for such relief under 8 C.F.R. § 212.3(a)(1)." (Dkt. No. 6: 3/24/04 INS Br. at 9.) However, in Restrepo v. McElroy, 369 F.3d 627, 633 n. 10 (2d Cir. 2004), the Second Circuit found the petitioner to have adequately exhausted his administrative remedies regarding his retroactivity argument: like Thompson, the petitioner in Restrepo argued in his habeas petition that he decided to forego his opportunity to make an affirmative § 212(c) application in reliance on his ability to apply for that relief at a later time when his application would be stronger. See Restrepo v. McElroy, 369 F.3d at 633. Restrepo's removal hearings were held in 1997. Id. at 630. The Second Circuit inRestrepo found that the petitioner had satisfied the exhaustion requirement "because the BIA's decision addressed the retroactivity of the AEDPA and considered the relevant authorities — Henderson v. INS and the Attorney Generals' decision vacating Matter of Soriano." Restrepo v. McElroy, 369 F.3d at 633. n. 10.
See Point II.C below for a full discussion of the Second Circuit's Restrepo decision.
While the government in Restrepo had pointed out that the petitioner's particular reliance argument was new on appeal, the Second Circuit noted that the "[p]etitioner's decision not to raise this specific argument in his habeas petition is perfectly understandable. Almost none of this circuit's AEDPA retroactivity cases had been decided when he applied for habeas relief." Id.
Similarly, Thompson argued to the IJ and the BIA that the AEDPA/IIRIRA repeal of § 212(c) relief should not be applied retroactively to him. The IJ, in denying Thompson's eligibility for the relief, relied on Henderson v. INS, the then-prevailing Second Circuit decision. (See page 4 above.) Further, in affirming the IJ's decision, the BIA based its decision on INS v. St. Cyr, the prevailing Supreme Court precedent on the retroactivity issue. (See page 5 above). The Second Circuit had not decided Restrepo until after Thompson's INS proceedings were concluded (indeed, until after his habeas petition was filed).
Accordingly the Court finds that, as in Restrepo, Thompson has exhausted his administrative remedies.
II. THE APPLICABLE PRECEDENT — ST. CYR, RANKINE AND RESTREPO A. The Second Circuit and Supreme Court St. Cyr Decisions
Prior to AEDPA/IIRIRA, INA § 212(c) provided the Attorney General with broad discretion (which was delegated to the BIA) 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"). After IIRIRA's enactment, the Second Circuit held that although relief under former § 212(c) was repealed (by IIRIRA section 304(b)), § 212(c) relief remained available to aliens who pled guilty (or nolo contendere) prior to IIRIRA's September 30, 1996 enactment. St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir. 2000) ("St. Cyr I"). The Second Circuit specifically held that the AEDPA/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:
See also, e.g., United States v. Johnson, 391 F.3d 67, 69 (2d Cir. 2004); Ortega v. Reno, 99 Civ. 4512, 2003 WL 359464 at *3 (S.D.N.Y. Feb. 18, 2003); Gonzalez-Polanco v.INS, 02 Civ. 2734, 2002 WL 1796834 at *4 (S.D.N.Y. Aug. 5, 2002) (Peck, M.J.); Lawrence v. INS, 00 Civ. 2154, 2001 WL 818141 at *3 (S.D.N.Y. July 20, 2001) (Peck, M.J.), aff'd sub nom Rankine v. Reno, 319 F.3d 93 (2d Cir.), cert. denied, 540 U.S. 910, 124 S. Ct. 287 (2003).
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).
See also Restrepo v. McElroy, 369 F.3d 627, 631-32 (2d Cir. 2004); Thom v. Ashcroft, 369 F.3d 158, 161-62 (2d Cir. 2004); Gonzalez-Polanco v. INS, 2002 WL 1796834 at *4;Lawrence v. INS, 2001 WL 818141 at *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., Gonzalez-Polanco v. INS, 2002 WL 1796834 at *4; Lawrence v. INS, 2001 WL 818141 at *3.
In 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 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). B. The Second Circuit Rankine Decision Confirmed That the Elimination of § 212(c) Relief Applies to Those Who Were Convicted At Trial Before § 212(c)'s Repeal
Accord, e.g., Gonzalez-Polanco v. INS, 2002 WL 1796834 (quoting St. Cyr II); Lawrence v. INS, 2001 WL 818141 at *4-5 (same).
In January 2003, the Second Circuit addressed whether the AEDPA/IIRIRA repeal of § 212(c) relief has an impermissible retroactive effect "when applied to aliens who were convicted at trial before the date of the repeal." Rankine v. Reno, 319 F.3d 93, 94 (2d Cir.), cert. denied, 540 U.S. 910, 124 S. Ct. 287 (2003). The Second Circuit held that "[b]ecause those aliens who went to trial prior to the elimination of § 212(c) relief cannot show that they altered their conduct in reliance on the availability of such relief, [as they could in St. Cyr], . . . IIRIRA's repeal of § 212(c) is not impermissibly retroactive as applied to them." Rankine v. Reno, 319 F.3d at 100. Rankine found a difference between those aliens who chose to enter guilty pleas instead of going to trial — the St. Cyr factual scenario — and those who chose to go to trial:
The Second Circuit noted that it "drew the same conclusion in St. Cyr[I], . . . but [its] words were dicta in that case."Rankine v. Reno, 319 F.3d at 100 n. 3.
First, none of these petitioners detrimentally changed his position in reliance on continued eligibility for § 212(c) relief. Unlike aliens who entered pleas, the petitioners made no decision to abandon any rights and admit guilt — thereby immediately rendering themselves deportable — in reliance on the availability of the relief offered prior to IIRIRA. The petitioners decided instead to go to trial, a decision that, standing alone, had no impact on their immigration status. Unless and until they were convicted of their underlying crimes, the petitioners could not be deported. The claim that they relied on the availability of § 212(c) relief in making the decision to go to trial is therefore somewhat hollow: in fact, they decided to go to trial to challenge the underlying crime that could render them deportable and, had they succeeded, § 212(c) relief would be irrelevant.
Second, the petitioners have pointed to no conduct on their part that reflects an intention to preserve their eligibility for relief under § 212(c) by going to trial. If they had pled guilty, petitioners would have participated in the quid pro quo relationship, in which a greater expectation of relief is provided in exchange for forgoing a trial, that gave rise to the reliance interest emphasized by the Supreme Court in St. Cyr. As the Court made clear, it was that reliance, and the consequent change of immigration status, that produced the impermissible retroactive effect of IIRIRA. Here, petitioners neither did anything nor surrendered any rights that would give rise to a comparable reliance interest. Rather than ensuring their continued eligibility for discretionary relief through a plea agreement, the petitioners instead risked forfeiting their eligibility completely at trial through the possibility of a sentence in excess of that allowable under § 212(c). Under these circumstances, it is difficult to conclude, as we must to find impermissible retroactivity, that the petitioners chose to go to trial in reliance on the availability of § 212(c) relief.Rankine v. Reno, 319 F.3d at 99-100 (emphasis added citations omitted). The issue of reliance was pivotal to the Supreme Court's and Second Circuit's determinations of impermissible retroactivity and, in Rankine, the Second Circuit found that the aliens had not relied upon the availability of § 212(c) relief in making their decision to go to trial but rather, "what they truly relied upon was their claim of innocence."Rankine v. Reno, 319 F.3d at 102.
Just as St. Cyr established a blanket rule applicable to all aliens who pled guilty before AEDPA/IIRIRA's enactment whether or not they actually individually relied on the availability of § 212(c) relief in making their decision, Rankine established a blanket rule that the repeal of § 212(c) relief applies to any alien who was convicted after a trial even if he did actually rely on the availability of § 212(c) relief in making his decision. See Swaby v. Ashcroft, 357 F.3d 156, 162 (2d Cir. 2004) ("We therefore conclude that the holding in Rankine is not an invitation to aliens, like petitioner, to offer individualized proof of their motivation in choosing to go to trial. We hold that the decision to go to trial, as a matter of law, forecloses any argument of detrimental reliance on the availability of § 212(c) relief, and that IIRIRA's repeal of § 212(c) is not impermissibly retroactive in its application to petitioner.").
C. The Second Circuit Decision in Restrepo v. McElroy
The Second Circuit's most recent decision on the retroactivity of the repeal of § 212(c) relief concerns aliens who, after their convictions at trial, could have filed an affirmative application for § 212(c) relief before being placed in removal proceedings, pursuant to 8 C.F.R. § 212.3(b), but decided not to do so in reliance on their ability to apply for § 212(c) relief at a later time when, "presumably, [their] case would be stronger due to a longer record of rehabilitation and community ties." Restrepo v. McElroy 369 F.3d 627, 633 (2d Cir. 2004). Thus, according to the petitioner in Restrepo, elimination of § 212(c) relief "disrupt[ed] his reasonable reliance and settled expectations." Id.
8 C.F.R. § 212.3(b) provides in pertinent part: "The application may be filed prior to, at the time of, or at any time after the applicant's departure from or arrival into the United States." See Restrepo v. McElroy, 369 F.3d at 639 n. 19.
The immigration authorities weigh several factors to determine whether an alien should be afforded § 212(c) relief:
A Section 212(c) determination involves a balancing of "the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interests of this country." Adverse factors include: the nature and circumstances of the exclusion ground at issue, the presence of additional immigration law violations, the existence of a criminal record and its nature, recency and seriousness, and the presence of other evidence indicative of an alien's bad character or undesirability as a permanent resident. Favorable considerations include: family ties within this country, residence of long duration in this country, arrival in the country at a young age, evidence of hardship to the alien and the alien's family upon deportation, Armed Forces service, employment history, community service, property or business ties, evidence attesting to good character, and, in the case of one convicted of criminal conduct, proof of genuine rehabilitation.
"Where . . . an alien is deportable by reason of two narcotics convictions, the alien must make a showing of unusual or outstanding countervailing equities to obtain a waiver of deportation." However, the Supreme Court noted in St. Cyr that at the time of its decision, over half of all Section 212(c) applications had been granted.United States v. Copeland, 376 F.3d 61, 74 (2d Cir. 2004) (citations omitted); see also, e.g., Restrepo v. McElroy, 369 F.3d at 634.
The Second Circuit in Restrepo, adhering to the analysis required by Landgraf, concluded that the retroactive application of the AEDPA/IIRIRA could be impermissible.Restrepo v. McElroy, 369 F.3d at 633. The Second Circuit reasoned that because the immigration judge balances adverse factors such as recency of the conviction with favorable considerations of duration of residence in the country, employment history, community ties and proof of rehabilitation, "an alien convicted of a deportable crime would be motivated to wait as long as possible to file a 212(c) application in the hope that he could build a better case for relief — one that shows longer residence in the United States, deeper community ties, and, perhaps most significantly, stronger proof of rehabilitation." Restrepo v.McElroy, 369 F.3d at 634. The Second Circuit found:
It cannot therefore be doubted that an alien such as Petitioner might well decide to forgo the immediate filing of a 212(c) application based on the considered and reasonable expectation that he would be permitted to file a stronger application for 212(c) relief at a later time. It seems equally clear that the AEDPA's undermining of this settled expectation represents a prototypical case of retroactivity. Just like the aliens in St. Cyr, who sacrificed something of value — their right to a jury trial, at which they could obtain outright acquittal — in the expectation that their guilty pleas would leave them eligible for 212(c) relief, an alien like Petitioner also sacrificed something — the shot at obtaining 212(c) relief by immediately filing an application — in order to increase his chances of obtaining such relief later on. Such an alien "conformed his or her conduct according to the availability of relief," and therefore had settled expectations that would be "severely upset," were the AEDPA to be applied retroactively.
While we do not doubt that Congress has the power, within constitutional limits, to create a statute that works such a disruption of settled expectations, and longstanding practice require us to presume that Congress did not mean to do so, at least in the absence of a clear indication to the contrary. "Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits."Restrepo v. McElroy, 369 F.3d at 634-35 (citations fns. omitted, emphasis added).
The Second Circuit in Restrepo distinguished its decision from its prior decision in Rankine. Restrepo v. McElroy, 369 F.3d at 636-37. While the Restrepo petitioner was like the aliens in Rankine because he had been convicted after trial,Rankine did not consider this issue but rather "resolved the narrower question of whether an alien detrimentally relied on the continued availability of 212(c) relief in deciding to go to trial rather than accepting a plea." Restrepo v. McElroy, 369 F.3d at 636. The Rankine petitioners had not detrimentally relied on § 212(c) by choosing to go to trial and could not claim they would have made a different decision had they known about the AEDPA. Restrepo v. McElroy, 369 F.3d at 637.
Contrariwise, the petitioner in Restrepo, like the petitioner in St. Cyr, "incurred a heightened expectation of prospective relief flowing from [his] choice to forgo filing an affirmative application in the hope of building a stronger record and filing at a later date" when the alien could presumably present a stronger case for § 212(c) relief. Restrepo v. McElroy, 369 F.3d at 637. "To the extent that aliens like Petitioner detrimentally adapted their positions in reliance of their expectation of continued eligibility for 212(c) relief, the factors considered in Rankine appear to weigh against proscribing such relief retroactively." Restrepo v. McElroy, 369 F.3d at 637.
Restrepo recognized that the Supreme Court in St. Cyr II did "discuss the quid pro quo nature of an alien's guilty plea," but "the [Supreme] Court never suggested that all parties who claim that a statute has a retroactive effect must show the disruption of a quid pro quo exchange. And it would be out of keeping with the reasoning of St. Cyr II to read such a quid pro quo requirement into that opinion." Restrepo v. McElroy, 369 F.3d at 637.
The Second Circuit in Restrepo commented that were aquid pro quo necessary, it would find it present in theRestrepo set of circumstances, i.e., foregoing an early § 212(c) application which benefits the INS "in the form of a reduced docket." Restrepo v. McElroy, 369 F.3d at 637 n. 17 638 n. 18.
The Second Circuit in Restrepo remanded to the district court "for it to determine whether Petitioner can himself claim the benefit of this argument." Id. at 639. The Second Circuit found the district court to be in the best position to determine whether an alien in the position of the petitioner must make "anindividualized showing that he decided to forgo an opportunity to file for 212(c) relief in reliance on his ability to file at a later date (and, if he must, whether petitioner can do so), or whether, instead, a categorical presumption of reliance by any alien who might have applied for 212(c) relief when it was available, but did not do so, is more appropriate." 369 F.3d at 640. III. THOMPSON IS REQUIRED TO MAKE AN INDIVIDUALIZED SHOWING THAT HE HAD RELIED ON THE CONTINUED EXISTENCE OF § 212(c) RELIEF
On remand, the INS in Restrepo established that the petitioner had been in prison for more than five years by the date he was ordered deported, and so he was not eligible for § 212(c) relief (because aliens incarcerated for more than five years were not eligible for § 212(c) relief even prior to the AEDPA/IIRIRA). Restrepo v. McElroy, No. 99-CV-2049, ___ F. Supp. 2d ___, 2005 WL 387076 at *1 (E.D.N.Y. Feb. 18, 2005) (Weinstein, D.J.). Judge Weinstein therefore found that Restrepo "does not fall into the category of aliens that reasonably could have relied on the continued availability of section 212(c) relief [since t]here could be no reason for someone to postpone filing for so long that he becomes statutorily ineligible for the relief sought, in this case by triggering the five year bar."Restrepo v. McElroy, 2005 WL 387076 at *1. Judge Weinstein therefore found that the Second Circuit's remand questions — including the issue of an individualized vs. a categorical presumption of reliance — were moot. Id.
Here, as the parties agree, Thompson falls within theRestrepo set of circumstances. Thompson claims to have detrimentally relied on the continued existence of § 212(c) relief when he delayed his affirmative application for § 212(c) relief in the hopes of building a stronger case. (Dkt. No. 1: Pet. ¶ 29.) This Court must decide whether a petitioner must make an individualized showing of detrimental reliance or whether a categorical approach should be adopted.
Dkt. No. 12: INS Supp. Br. at 3; Dkt. No. 10: Thompson Br. at 6; Dkt. No. 13: Thompson Reply Br. at 2, 3.
A. The Lack of Empirical Evidence of Actual Detrimental Reliance By Aliens Warrants the Requirement of an Individualized Showing
The Supreme Court in St. Cyr II recognized that, in taking a categorical approach, even aliens who had not relied on the availability of § 212(c) relief in making their decision to plead guilty would benefit from the Supreme Court's holding. See Restrepo v. McElroy, 369 F.3d 627, 640 (2d Cir. 2004) (the Supreme Court in St. Cyr II took a categorical approach and, "as a result, it did not require any specific showing that St. Cyr had, himself, based his guilty plea on any particular expectations concerning 212(c) relief."). However, the Supreme Court in St. Cyr II had the benefit of overwhelming empirical evidence: that most aliens who pled guilty before 1996 did so with knowledge of the immigration consequences, and, more importantly, likely accepted plea bargains for the very reason that they would still be able to apply for § 212(c) relief after their conviction. St. Cyr II, 533 U.S. 289, 296 n. 5, 322 n. 48, 121 S. Ct. 2271, 2277 n. 5, 2291 n. 48 (2001). Specifically, the Supreme Court noted 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, 121 S. Ct. at 2291. Further, the Supreme Court recognized that since § 212(c) relief was granted more than 50% of the time, "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 proceed to trial." Id. at 323, 121 S. Ct. at 2291. Additionally, it was highly probable that a defendant was aware of the immigration consequences of pleading guilty because many states required judges to advise defendants of such immigration consequences and the American Bar Association advised defense attorneys to do the same. Id. at 323 n. 48, 121 S. Ct. at 2291 n. 48. Therefore, even though the Supreme Court determined that aliens who pled guilty before 1996 did not need to make an individualized showing of actual reliance on the continued existence of § 212(c) relief in entering into their plea, the Supreme Court in St. Cyr II had ample evidence that it was reasonable to presume such reliance had in fact occurred.
Here, there is no such evidence in this record. There has been no empirical evidence presented to this Court (or to the Second Circuit in Restrepo) to demonstrate that aliens in a Restrepo situation generally knew of the availability of an affirmative application for § 212(c) relief or generally delayed applications in the hopes of bolstering a future application to the immigration authorities. Nor does the case law from other Circuits shed any light on this situation. See, e.g., Saravia-Paguda v. Ridge, No. C 04-03940, 2005 WL 88967 at *5 (N.D. Cal. Jan. 13, 2005) ("Petitioner has not shown any case in which either the BIA or the Ninth Circuit has even considered the holding of Restrepo"); In Re: Clyde Ralph Fitzgerald Browne, File: A18 146 728, 2004 WL 2952283 (BIA Nov. 26, 2004) (denying petitioner's Restrepo type argument according to St. Cyr II and Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004)); In re: Louis Evangelista, Sr., File: A12 352 319, 2004 WL 2418680 (BIA Oct. 12, 2004) (in response to petitioner's Restrepo argument, noted that the Third Circuit, where petitioner's claim arose, has not yet ruled on the matter addressed in Restrepo).
The Third Circuit, in Ponnapula v. Ashcroft, 373 F. 3d 480, 496 (3d Cir. 2004), held that the AEDPA/IIRIRA do not apply retroactively to an alien who was convicted after a jury trial if he rejected an offer of a misdemeanor plea agreement before deciding to stand trial. The Third Circuit reasoned, in support of its rejection of Rankine and other Circuits' holdings, that the Supreme Court has never required a showing of actual reliance in its retroactivity analysis as opposed to "reasonable reliance of this class of aliens." Id. at 491-93. Ponnapula's holding required aliens to make some showing beyond the mere fact of having undergone a jury trial, that is, in order to gain the benefit of the Ponnapula holding, an alien convicted after trial must show that he turned down a plea bargain, deciding instead to go to trial. Id. at 494. Upon such a showing, reliance on the continued availability of § 212(c) relief is assumed. It is noteworthy that the petitioner in Ponnapula made a showing that he did actually reject an offer of a plea to a misdemeanor because he and his attorney believed that a conviction on the felony charged would have resulted in an under five year sentence that would have left him eligible for § 212(c) relief at the time. Id. at 483-84, 497. The Third Circuit, therefore, had the benefit of empirical evidence that this Court lacks.
Cf. Machado v. INS, 33 F. Supp. 2d 88, 91 n. 4 (D. Mass. 1999) ("[W]hile [petitioner] did have available to him — before the April passage of AEDPA — the right to, and a procedure for, the filing of a 212(c) application after INS' instigation of proceedings against him, the far more ordinary course is for the recipient of an Order to Show Cause to wait until the deportation hearing before an IJ to notice his intent to apply for, and/or lodge, an actual application.").
The Second Circuit in Restrepo emphasized the importance of detrimental reliance on the availability of future § 212(c) relief as a crucial focal point of its holding. Restrepo v.McElroy, 369 F.3d at 637. Without any evidence that generally aliens relied in the past on the continued availability of § 212(c) relief as their reason for not immediately applying for that relief, this Court cannot presume that such reliance is sufficiently prevalent or reasonable, on the record as it stands, to apply a categorical presumption of reliance. B. Requiring an Individualized Showing Avoids Effectively Over-Ruling Rankine
This Court does not take lightly Judge Calabresi's separate Restrepo concurrence, concurring with his own majority opinion. Judge Calabresi made clear in his concurrence that he is of the opinion that the categorical approach is appropriate in the Restrepo type situation. Restrepo v. McElroy, 369 F.3d at 645 ("I personally doubt that individuation is appropriate in the case before us.") (concurring opinion). While Judge Calabresi's concurrence provided a comprehensive and instructive analysis of the state of the law on the retroactivity issue,see id. at 643-45, this Court is not bound by his concurrence. See Maryland v. Wilson, 519 U.S. 408, 412-13, 117 S. Ct. 882, 885 (1997) ("We agree with respondent that the former statement was dictum, and the latter was contained in a concurrence, so that neither constitutes binding precedent.");United States v. Porter, 90 F.3d 64, 67 (2d Cir. 1996) ("[W]hile we are certainly cognizant of Judge Winter's concurrence, it is not binding on this panel."); Sumner v.McCall, No. 87-119, 2003 WL 23105225 at *4 (N.D.N.Y. Jan. 5, 2004) ("Although Justice O'Connor's concurrence is learned and instructive, it is not binding precedent."). Indeed, one might infer from the fact that Judge Calabresi wrote a concurrence to his own majority opinion, that the other two members of theRestrepo panel were not willing to to along with Judge Calabresi's personal views. And even Judge Calabresi's concurrence recognized that the issue "may well involve some fact finding." McElroy v. Restrepo, 369 F.3d at 645 (concurring opinion). Had petitioner's counsel here presented facts, similar to those before the Supreme Court in St. Cyr II, of generalized reliance, the result might be different.
The INS points to a hypothetical raised in Thom v.Ashcroft, 369 F. 3d 158, 166 (2d Cir. 2004) — a post-Restrepo case — as evidence of the Second Circuit's amenability to an individualized reliance approach. (See Dkt. No. 12: INS Supp. Br.at 28.) In considering the alien's laches argument, Judge Calabresi posited as a hypothetical a situation where the INS had delayed commencing deportation proceedings against an alien because it knew that the alien was a likely candidate for a § 212(c) waiver. Thom v. Ashcroft, 369 F. 3d at 166. Thom posited that in that hypothetical situation, the "alien might reasonably rely on the INS's inaction and decide on that basis to make important commitments to his residency in the United States . . . only later to find that, after Congress had eliminated 212(c) relief, the INS seeks to deport him." Id. Under these circumstances, according to Judge Calabresi inThom, "an alien might argue with some force that he has demonstrated the kind of reasonable reliance and settled expectations under Landgraf that would render the elimination of 212(c) relief impermissibly retroactive if applied to him."Thom v. Ashcroft, 369 F.3d at 166 (citation omitted). Judge Calabresi noted that this retroactivity argument is not before the Court and the Court "express[es] no opinion." Id. The hypothetical and Judge Calabresi's dicta about it is no more binding than, or dispositive as to, the decision herein than hisRestrepo concurrence.
The Second Circuit in Restrepo reaffirmed its prior holding in Rankine. Restrepo v. McElroy, 369 F.3d 627, 636 (2d Cir. 2004) ("We have no argument with Rankine's reasoning or conclusion."). Adopting a blanket rule that the AEDPA/IIRIRA have an impermissible retroactive effect when applied to aliens, like Thompson and Restrepo, who were convicted at trial but could have filed affirmative § 212(c) applications before that section's repeal in 1996, would effectively over-rule Rankine. Rankine held that the AEDPA/IIRIRA did not have an impermissible retroactive effect when applied to aliens who had been convicted at trial before their enactment. (See Point II.B above.) Every alien who falls within the Restrepo category also fall within the Rankine category. If a categorical approach were adopted here, every alien who was convicted at trial before 1996 — that is, every alien who falls within Rankine — and who had removal proceedings commenced against them after 1996 could claim to fall within the Restrepo category. Therefore, if a categorical approach were adopted, the Restrepo holding would swallow the Rankine holding, which the Second Circuit inRestrepo specifically left intact.
On the other hand, requiring an individualized showing would maintain a distinction between Rankine and Restrepo by requiring those aliens who were convicted at trial before 1996 ("Rankine aliens") who were later brought into removal proceedings after 1996 to show that applying the AEDPA/IIRIRA to them would have an impermissible retroactive effect because they relied on the continued existence of § 212(c) relief in not affirmatively filing a § 212(c) application. This showing of detrimental reliance would separate a Rankine alien who gave no consideration to applying for § 212(c) relief from a Restrepo alien who can show he actually was waiting for his § 212(c) claim to ripen.
C. Thompson's Case Should Be Remanded to the BIA for Findings of Fact on His Detrimental Reliance Claim
Both parties agree that, should the Court require an individualized showing of reliance, Thompson's case should be remanded to the BIA, which should then remand the case to the IJ as the proper fact-finder. (Dkt. No. 13: Thompson Reply Br. at 9; Dkt. No. 12: INS Supp. Br. at 29-30.) When a statute places a matter primarily in agency hands, a reviewing court should remand a case to that agency for decision on the issue. INS v.Ventura, 537 U.S. 12, 16-17, 123 S. Ct. 353, 355 (2002). The federal courts are "'not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.' Rather, 'the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'" Id. at 16, 123 S. Ct. at 355 (citations omitted). Remanding to the BIA would allow that agency to "bring its expertise to bear upon the matter." Id. at 17, 123 S. Ct. at 355. The Court agrees with the parties that the proper course here is to remand to the BIA for additional fact-finding proceedings.
CONCLUSION
For the reasons set forth above, Thompson's case should be remanded to the BIA to determine whether Thompson can show individualized reliance on the continued existence of § 212(c) relief as his reason for delaying his application for affirmative § 212(c) relief.
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 shall have ten (10) days from service of this Report to file 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 Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v.Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992);Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).