Opinion
98 Civ. 6880 (KMW)(KNF)
May 16, 2003
REPORT AND RECOMMENDATION
TO THE HONORABLE KIMBA M. WOOD, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Before the Court is William Woodrow Wilson's ("Wilson") petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2241. Wilson challenges a final order of removal from the United States issued by the Immigration and Naturalization Service ("INS").
Petitioner contends that he is entitled to relief because: (1) he is eligible for a discretionary waiver of deportation pursuant to the Immigration and Nationality Act ("INA") § 212(c) ("§ 212(c)"), 8 U.S.C. § 1182 (c) (repealed by the Illegal Immigration Reform and Immigration Responsibility Act ("IIRIRA") § 304[b]); (2) the determination by the INS that he was ineligible for a waiver of inadmissibility under INA § 212(h) ("§ 212(h)"), 8 U.S.C. § 1182 (h), by virtue of his status as a lawful permanent resident, effectively denied him equal protection under the Due Process Clause of the Fifth Amendment; and (3) the immigration court erred in denying his request to terminate the removal proceedings in order to give him an opportunity to submit evidence concerning his eligibility for naturalized citizenship.
Respondents oppose petitioner's application for a writ of habeas corpus. They contend that the petition should be dismissed for lack of jurisdiction, or else transferred to the Western District of Louisiana where venue would be proper. Alternatively, respondents claim, the petition should be dismissed on the merits.
For the reasons set forth below, I recommend that the petition be denied.
II. BACKGROUND
Wilson is a native and citizen of Jamaica. He was admitted to the United States as a lawful permanent resident on November 5, 1967, when he was four years old. On October 21, 1986, following a jury trial in the New York State Supreme Court, Queens County, Wilson was found guilty of robbery in the second degree, see N.Y. Penal Law § 160.10, and criminal possession of stolen property in the third degree, see N.Y. Penal Law § 165.50. Wilson was sentenced to two to six years imprisonment for the second degree robbery conviction and one year imprisonment for the third degree criminal possession of stolen property conviction. The sentences were to be served concurrently. On February 13, 1987, Wilson entered a guilty plea in New York State Supreme Court, Queens County, to assault in the first degree, see N.Y. Penal Law § 120.10, and was sentenced to a term of imprisonment of twenty-eight months to seven years for that offense. Robbery in the second degree and assault in the first degree are aggravated felonies pursuant to 8 U.S.C. § 1101 (a)(43).
The statutory definition of "aggravated felony" incorporates other statutory definitions. See United States v. Pornes-Garcia, 171 F.3d 142, 145 (2d Cir. 1999). 8 U.S.C. § 1101 (a)(43) defines "aggravated felony" as, among other things, a "crime of violence," as that phrase is used in 18 U.S.C. § 16. That provision of Title 18 informs that a "crime of violence" is an "offense that has as an element the use, attempted use, or threatened use of physical force" against the person of another. 18 U.S.C. § 16 (a).
On October 31, 1997, Wilson arrived at John F. Kennedy International Airport in New York, following a visit to Jamaica. Upon arrival, Wilson applied for admission to the United States as a returning lawful permanent resident. During an inspection of Wilson's passport, immigration officials discovered that Wilson had a criminal record; they determined, therefore, that he was inadmissible to the United States. Wilson was detained and placed in an INS facility in New York. Thereafter, Wilson was transferred to the Federal Detention Center in Oakdale, Louisiana.
On November 1, 1997, Wilson was served a Notice to Appear in Removal Proceedings. The Removal Proceeding was initiated pursuant to INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182 (a)(2)(A)(i) (alien convicted for a crime involving moral turpitude); and INA § 212(a)(2)(B), 8 U.S.C. § 1182 (a)(2)(B) (alien convicted for two or more criminal offenses for which the aggregate sentence is five years or more).
On December 30, 1997, Wilson filed a motion in the immigration court seeking to be reclassified as an admitted alien. Wilson argued that, as a previously admitted lawful permanent resident of the United States, he should not be classified as an arriving alien upon his return from a "brief, casual and innocent" trip abroad. A hearing was held on December 30, 1997, in Oakdale, Louisiana, at which Wilson appeared, represented by counsel. The immigration judge ("IJ") who presided at the hearing determined to adjourn the proceedings in order to give Wilson an opportunity to submit evidence in support of his reclassification motion.
The hearing continued on January 14, 1998. Wilson testified, inter alia that he had traveled to Jamaica from the United States on or about October 20, 1997, and had returned on October 31, 1997. Wilson also testified that he had previously been convicted for the criminal offenses described above. Thereafter, the IJ denied Wilson's application for reclassification; he explained that, under INA § 101(a)(13)(C), as amended, a lawful permanent resident who, like Wilson, has been convicted for certain criminal offenses, for example, a crime involving moral turpitude, is to be considered an applicant for admission into the United States, regardless of the nature or circumstances of his travel abroad. The IJ then scheduled a hearing on the issue of petitioner's removability.
INA § 101(a)(13)(C), codified at 8 U.S.C. § 1101 (a)(13)(C), provides, in pertinent part:
An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for the purposes of the immigration law unless the alien . . . has committed an offense identified in section 1182(a)(2) of this title [i.e., inter alia, a crime involving moral turpitude]. . . .
When the hearing continued, on January 26, 1998, petitioner again testified concerning his criminal history. Counsel for the INS then withdrew certain allegations contained in the appearance notice, explaining that they were duplicative of charges made previously. Thereafter, the hearing was adjourned.
The hearing continued on February 26, 1998. Prior to issuing a decision regarding Wilson's removability, the IJ addressed the question whether Wilson had derived United States citizenship through his parents. Based on relevant documents presented at the hearing and the testimony of the petitioner, the IJ concluded that petitioner did not have citizenship status. Petitioner then asked the IJ to terminate the removal proceedings in order to afford petitioner an opportunity to apply for naturalized citizenship. The IJ denied this request, stating that he lacked the authority to terminate the proceedings for this purpose absent a determination by the INS or a court that petitioner was eligible for citizenship through naturalization.
Petitioner also urged the IJ to grant him a discretionary waiver of deportation pursuant to § 212(c). Petitioner contended that he was eligible for a § 212(c) waiver, even though the provision had been repealed, because the criminal conduct that served as a predicate for his order of removal predated the IIRIRA effective date, April 1, 1997. However, the IJ determined that petitioner was not eligible for such relief. Thereafter, the IJ found petitioner removable as charged, and ordered him removed to Jamaica.
On March 13, 1998, Wilson filed an appeal with the Board of Immigration and Appeals ("BIA"). On August 28, 1998, the BIA, in a per curiam decision, dismissed Wilson's appeal. The BIA's decision rendered Wilson's removal order final. See Lleo-Fernandez v. INS, 989 F. Supp. 518, 520 n. 2 (S.D.N.Y. 1998).
Petitioner filed the instant habeas corpus petition on September 28, 1998. On October 19, 1998, in order to preserve the court's jurisdiction to reach the merits of this case, petitioner's removal was stayed. See 28 U.S.C. § 1651. In addition, pursuant to petitioner's request, consideration of this petition was deferred pending action by the Second Circuit Court of Appeals on unrelated litigation concerning a pivotal issue in this case. The parties' claims are addressed below.
III. DISCUSSION
Jurisdiction
The respondents contend that the petition should be dismissed or transferred to the Western District of Louisiana, because the only proper respondent in this case is the INS District Director in New Orleans, Lynne Underdown ("Underdown"), and this court does not have personal jurisdiction over that individual. According to the respondents, Underdown is Wilson's only custodian because at the time Wilson applied for habeas corpus relief he was located at the INS detention facility in Louisiana. Thus, since a writ of habeas corpus is directed to the custodian of a detainee, Underdown is the only proper respondent here. Petitioner asserts that his custodian, and the proper respondent in this case, is the Attorney General of the United States.
The question of whether the Attorney General is the proper respondent to a habeas corpus petition brought pursuant to 28 U.S.C. § 2241 has not been resolved by the Second Circuit Court of Appeals. See e.g., Padilla v. Bush, 233 F. Supp.2d 564, 579-80 (S.D.N.Y. 2002) ("In Henderson v. INS, 157 F.3d 106 [2d Cir. 1998], the court considered, but did not decide, whether the Attorney General could be a proper respondent in [§ 2241] cases."). However, courts in both the Southern and Eastern Districts of New York have determined that the Attorney General is the proper custodian of an alien detained in any INS facility. See Small v. Ashcroft, 209 F. Supp.2d 294, 296 (S.D.N.Y. 2002); Singh v. Ashcroft, No. 01 Civ. 6588, 2003 WL 1873624, at *2 (E.D.N.Y. Apr. 11, 2003); Lee v. Ashcroft, 216 F. Supp.2d 51, 53-56 (E.D.N.Y. 2002). These courts have reasoned that the Attorney General has custody and control of immigrant detainees because he or she has "the power to produce, detain or release such individuals and is the ultimate decision-maker" as to matters concerning the INS. Singh, 2003 WL 1873624, at *2 (citing 8 U.S.C. § 1103[a][1] and Henderson, 157 F.3d at 126). In addition, the pertinent federal statutes designate the Attorney General as the legal custodian of aliens. See Small, 209 F. Supp.2d at 296 (citing 8 U.S.C. § 1222[a] and 8 U.S.C. § 1226[b] and [c]). Moreover, immigrant detention typically involves frequent shifts of location and, hence, of the identity of a detainee's custodian. Under those circumstances, it would be "unwieldy and unfair" to insist that the only proper custodian of a detainee was the INS District Director who had custody of that individual at the time a habeas corpus petition was filed. Id. Furthermore, the Attorney General is present in this and other federal judicial districts, through his representative, the United States Attorney. See id.
In this case, petitioner was detained by the INS in New York. Additionally, New York is the state of his residence and the location of his criminal activity and incarceration. See Singh, 2003 WL 1873624, at *2. Therefore, for the reasons set forth, the Court finds that the Attorney General, as petitioner's custodian at all relevant times, is the proper respondent in this case. Accordingly, Wilson's petition is properly before this court.
In 2001, the Supreme Court held that federal courts have jurisdiction under 28 U.S.C. § 2241 to hear and determine petitions for a writ of habeas corpus seeking review of final removal orders, but only with respect to legal or constitutional issues. See Calcano-Martinez v. INS, 533 U.S. 348, 351-152, 121 S.Ct. 2268, 2269-70 (2001); INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 2287 (2001). Accordingly, a habeas corpus petition brought pursuant to § 2241 may be used only "to challenge incarceration or orders of deportation as being 'in violation of the Constitution or laws or treaties of the United States.'" Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001) (quoting 28 U.S.C. § 2241[c][3]).
In this case, Wilson's contentions that he is eligible for a § 212(c) waiver and that his right to equal protection was violated, challenge the order of removal on legal and constitutional grounds, respectively. Accordingly, this court has jurisdiction to entertain the instant petition and to determine whether the petitioner is entitled to habeas corpus relief.
Eligibility for § 212(c) Relief
Prior to the enactment of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, certain aliens were entitled to apply for a waiver from deportation pursuant to § 212(c). Section 212(c), codified at 8 U.S.C. § 1182 (c), stated:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General. . . .8 U.S.C. § 1182 (c)(repealed)(1996) (quoted in St. Cyr, 533 U.S. at 295, 121 S.Ct. at 227(6).
In 1990, Congress amended § 212(c) to exclude from eligibility for a waiver any alien who had been convicted of one or more aggravated felonies and had served a term of imprisonment of at least five years.See Immigration Act of 1990, Pub.L. No. 101-649, § 511, 104 Stat. 5052 (amending 8 U.S.C. § 1182[c]); St. Cyr, 533 U.S. at 297, 121 S.Ct. at 2277.
On April 24, 1996, Congress limited further the availability of § 212(c) relief through the enactment of 440(d) of AEDPA, which excluded from 212(c) relief all aliens convicted of certain enumerated offenses regardless of the term of imprisonment served by the alien as a result of the conviction. See AEDPA § 440(d), 8 U.S.C. § 1227 (precluding from discretionary relief aliens convicted of committing, inter alia, an aggravated felony, a drug-related crime, or two or more offenses involving moral turpitude).
On September 30, 1996, Congress enacted the IIRIRA, which repealed § 212(c) altogether, and eliminated the proceedings previously known as "deportation" and "exclusion." Section 212(c) was replaced with a different form of discretionary relief from deportation known as cancellation of removal. See IIRIRA § 304(b), 8 U.S.C. § 1229a. Cancellation of removal was made available only to aliens who, inter alia, had not been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a).
In June 2001, the United States Supreme Court addressed the question, whether provision of AEDPA and IIRIRA repealing discretionary relief from deportation applied retroactively to an alien whose conviction was obtained through a plea agreement. See St. Cyr, 533 U.S. at 320, 121 S.Ct. at 2290. The 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." Id. at 326, 2293. In reaching its conclusion, the Court reasoned that:
[This] presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.Id. at 316, 2288 (citation omitted) (internal quotation marks omitted).
Wilson claims that he is eligible for relief pursuant to § 212(c) because one of the convictions which served a predicate for his order of removal, namely, his 1987 conviction for assault in the first degree, was obtained through a plea agreement. Therefore, petitioner contends, despite IIRIRA's elimination of § 212(c), the relief once provided under that section remains available to him because he was eligible for § 212(c) relief, under the law, at the time of his plea. Consequently, petitioner maintains, the BIA erred when it concluded that he was ineligible for a discretionary waiver of deportation pursuant to § 212(c). Accordingly, petitioner argues that to bar him from applying for a waiver under that provision would result in an impermissible retroactive application of AEDPA and IIRIRA.
Petitioner's claim is without merit. Petitioner's order of removal was based not only on his 1987 conviction, but also on his 1986 convictions for second degree robbery and third degree criminal possession of stolen property. Those convictions were obtained, not through a guilty plea, but after a jury trial. Therefore, the Supreme Court's rulings in St. Cyr, making § 212(c) relief available to aliens who pled guilty prior to the enactments of AEDPA and IIRIRA, does not apply in this case.
Equal Protection
Petitioner claims that his right to equal protection under the Fifth Amendment was violated by the BIA's determination that he was ineligible for a waiver of inadmissibility under § 212(h). According to petitioner, § 212(h), as amended, permits disparate treatment of persons who are similarly situated and therefore violates the equal protection component of the Due Process Clause of the Fifth Amendment. Specifically, petitioner alleges that § 212(h) impermissibly permits a distinction between those who have committed aggravated felonies but have not been admitted as lawful permanent residents, and those who have committed aggravated felonies but have been admitted as lawful permanent residents.
Section 212(h) provides that the Attorney General may, in his discretion, waive the application of certain provisions of 8 U.S.C. § 1182 which make aliens inadmissable if, inter alia:
in the case of an immigrant who is the spouse, parent, son or daughter of a citizen of the United 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). In 1996, § 212(h) was amended to make discretionary relief unavailable to lawful permanent residents who have been convicted for an aggravated felony, although such relief remained available for non-lawful permanent residents with identical criminal histories. Id., as amended by IIRIRA § 348; see also Padmore v. Ashcroft, No. 00 Civ. 8804, 2003 WL 367868, at *2 (S.D.N.Y. Feb. 19, 2003). However, on May 29, 2002, the Second Circuit Court of Appeals found that § 212(h) does not violate equal protection because inter alia, "the difference of treatment between [lawful permanent residents] and non-[lawful permanent residents] in amended § 212(h) is rationally related to a legitimate government purpose." Jankowski-Burczyk v. INS, 291 F.3d 172, 178-80 (2d Cir. 2002); see also Padmore, 2003 WL 367868, at *2; Ortega v. Reno, No. 99 Civ. 4512, 2003 WL 359464, at *3 (S.D.N.Y. Feb. 18, 2003). Therefore, petitioner's equal protection claim must be denied.
Termination of Removal Proceedings
Petitioner claims that the IJ erred by not terminating the removal proceedings in order to afford petitioner an opportunity to apply for United States citizenship. Respondents argue that the court does not have jurisdiction to consider this claim because the decision not to terminate a removal proceeding is discretionary and, thus, beyond the scope of habeas corpus review. In reply, petitioner contends that the IJ did not exercise any discretion in denying petitioner's request for a termination of the proceedings but, rather, misconstrued certain provisions of the INA and the Code of Federal Regulations ("C.F.R.").
"[F]ederal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the IJ and the BIA." Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001); see also Darius v. INS, No. 01 Civ. 8015, 2002 WL 31119433, at *4 (S.D.N.Y. Sept. 24, 2002);Hernandez-Osoria v. Ashcroft, No. 01 Civ. 5545, 2002 WL 193574, at *5 (S.D.N.Y. Feb. 7, 2002). Title 8 of the C.F.R. § 239.2(f), which the IJ cited in denying petitioner's request to terminate his removal proceeding, provides, in pertinent part:
An immigration judge may terminate removal proceedings to permit the alien to proceed to a final hearing on a pending application or petition for naturalization when the alien has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors. . . .8 C.F.R. § 239.2 (f). Thus, the decision whether to terminate a removal proceeding in order to permit an alien to petition for naturalization appears to be a matter of discretion. Consequently, it appears that this court does not have subject matter jurisdiction over petitioner's claim.
Petitioner contends, however, that the IJ did not exercise discretion in this matter but, rather, interpreted incorrectly certain provisions of the INA and C.F.R. Assuming, arguendo, that the IJ's decision to deny petitioner's request to terminate the removal proceedings is subject to habeas corpus review, the Court finds, based on a review of the record in this case, that the IJ did not err when he determined to deny the request.
During the hearing at which petitioner's request was considered, the IJ, relying upon the BIA's finding in In re Cruz, 15 IN Dec. 236 (BIA 1975), stated that, in order to establish prima facie eligibility for naturalization, petitioner required either an affirmative communication from the INS, or the declaration of a court, stating that he would be eligible for naturalization, but for the pendency of the deportation proceedings. The IJ noted that the INS had not provided such an affirmative communication. In the absence of an appropriate court ruling, therefore, the IJ determined that he had no authority to terminate the removal proceedings and, on that basis, denied petitioner's request.
In re Cruz has been found to be unpersuasive on the question of whether the district courts have jurisdiction to find that an alien is eligible for naturalization: "only Congress — not an administrative agency — can confer jurisdiction on a federal court. Cruz cites no jurisdictional basis for its holding and was decided at a time when district courts had exclusive jurisdiction to grant or deny applications for naturalization." Apokarina v. Ashcroft, 232 F. Supp.2d 414, 417 (E.D. Pa. 2002). Thus, in the case at bar, the IJ's reliance upon In re Cruz may have been misplaced, insofar as his ruling reflected the conclusion, reached in that decision, that the courts have authority to establish prima facie eligibility for naturalization. However, the IJ's determination to deny petitioner's request to terminate was not incorrect.
In 1990, Congress divested the courts of authority to decide prima facie eligibility for naturalization and bestowed upon the Attorney General "the sole authority to naturalize persons as citizens of the United States." Li v. INS, 2003 WL 102813, at *3 (S.D.N.Y. Jan. 10, 2003) (quoting 8 U.S.C. § 1421 [a]). At the same time, the federal district courts were given the authority to conduct de novo review of denials of applications for naturalization. See Apokarina, 232 F. Supp.2d at 416 (citing 8 U.S.C. § 1421[c]). Thus, although courts no longer have authority to establish prima facie eligibility for naturalization, the INS retains such authority. See, e.g., Li, 2003 WL 102813, at *3 (describing the five-stage administrative naturalization process which begins with submission of application materials to the INS and concludes with attendance at an oath ceremony, provided the INS grants the application). Consequently, an IJ has discretion to terminate removal proceedings in order to allow an alien to apply for naturalization only if the alien has submitted acceptable prima facie evidence of eligibility for naturalization in the form of an appropriate communication from the INS. Accordingly, the IJ did not err when he denied petitioner's request to terminate the removal proceedings.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that petitioner's application for a writ of habeas corpus be denied.
V. FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATIONS
Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rule of Civil Procedure, the parties shall have ten (10) days from service of this Report and Recommendation 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 Kimba M. Wood, United States District Judge, 500 Pearl Street, Room 1610, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arm, 474 U.S. 140 (1985); IEU AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 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).