Opinion
Civil Action No. 01-5462.
April 30, 2004
REPORT AND RECOMMENDATION
Now pending before this court is a Petition for Writ of Habeas Corpus filed by Claudius Atkinson ("Atkinson"), pursuant to 28 U.S.C. § 2241, challenging the lawfulness of an immigration judge's ("IJ") final order for removal and decision that petitioner is not eligible for an Immigration and Nationality Act ("INA") § 212(c) waiver. For the reasons which follow, it is recommended that the petition be GRANTED.
I. PROCEDURAL AND FACTUAL HISTORY
The facts set forth below were compiled from the Petition for Writ of Habeas Corpus, petitioner's Brief, and the Response and Supplemental Response filed on behalf of respondents by the United States Attorney's Office.
Atkinson is an alien and citizen of Jamaica who came to the United States as a non-immigrant visitor in January 1983, and adjusted his status to lawful permanent resident on January 25, 1985. On December 16, 1991, following a jury trial, the Court of Common Pleas for Philadelphia County, Pennsylvania, convicted Atkinson of criminal conspiracy and possession of, with intent to distribute, a controlled substance. On the same day, Atkinson was sentenced to not less than six months nor more than twelve months imprisonment, to run concurrently with a second sentence of not less than eleven months nor more than twenty-three months served on work release.
Atkinson was charged with illegally possessing 584.2 grams of marijuana and 2 grams of crack cocaine.
On June 2, 1997, the Immigration and Naturalization Service ("INS") served a Notice to Appear on Atkinson, initiating removal proceedings. The Notice to Appear alleged that Atkinson was removable from the United States, pursuant to INA §§ 237(a)(2)(B)(I) and 237(a)(2)(A)(iii), as an alien convicted of an offense relating to a controlled substance and an aggravated felony, as defined in INA § 101(a)(43).
As of March 1, 2003, the INS was transferred from the United States Department of Justice to the Department of Homeland Security. The INS was then divided into three components: the Bureau of Customs and Border Protection; the Bureau of Immigration and Customs Enforcement; and the Bureau of Citizenship and Immigration Services. The Bureau of Immigration and Customs Enforcement is now responsible for the enforcement functions of the former INS. Because this controversy commenced prior to March 2003, however, this court will refer to the INS where applicable to avoid confusion.
On March 30, 1998, the IJ ordered Atkinson removed, holding Atkinson ineligible for any form of removal relief, including a waiver of deportation under repealed INA § 212(c). Atkinson filed an appeal with the Board of Immigration Appeals ("BIA"), which affirmed the IJ's decision, without written opinion, on June 25, 2001. On July 23, 2001, Atkinson filed a Motion to Reconsider with the BIA basing his argument on INS v. St. Cyr, 533 U.S. 289 (2001).
On October 18, 2001, Atkinson was detained by the INS. On October 29, 2001, Atkinson filed the present Petition for Writ of Habeas Corpus and Stay of Removal. The Stay of Removal was granted on the same day by Judge Petrese Tucker, and on April 29, 2002, Atkinson was released from INS custody pending resolution of this petition. On July 12, 2002, the BIA denied Atkinson's Motion to Reconsider, holding that the Supreme Court's ruling in St. Cyr applied to aliens entering into plea agreements but did not apply to aliens who, like Atkinson, were convicted after a jury trial. In his habeas petition Atkinson challenges the IJ's order of removal and decision that Atkinson was ineligible for § 212(c) relief as contrary to the laws of the United States.
II. DISCUSSION
Federal district courts have subject matter jurisdiction over habeas corpus petitions pursuant to 28 U.S.C. § 2241 (2004) despite the restrictions that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") imposed on aliens' access to federal courts. The United States Supreme Court has held that neither statute repealed habeas jurisdiction under § 2241. See St. Cyr, 533 U.S. at 314. Pursuant to INA § 242, judicial review of a final removal order is only allowed if "the alien has exhausted all administrative remedies available to the alien as of right." The Third Circuit has explained that a district court generally will not have jurisdiction over an alien's § 2241 petition unless the alien has already explored all avenues for administrative relief. See Duvall v. Elwood, 336 F.3d 228, 231 n. 5 (3d Cir. 2003). In this case, it appears Atkinson has exhausted his available remedies and neither party argues that this court does not have jurisdiction to hear this habeas petition.
Atkinson is challenging the IJ's March 30, 1998 order of removal and decision that Atkinson was ineligible for removal relief as violating the laws of the United States. Former INA § 212(c) provided that lawful permanent residents who voluntarily left the United States and were returning to a lawful unrelinquished domicile of seven consecutive years could be admitted without regard to certain crimes committed, in the discretion of the Attorney General. While INA § 212(c) literally applied only to exclusion proceedings, it was interpreted by the BIA as authorizing "any permanent resident alien with a lawful unrelinquished domicile of seven consecutive years to apply for a discretionary waiver from deportation." St. Cyr, 533 U.S. at 295 (internal quotations and citations omitted). In 1996, however, the IIRIRA repealed INA § 212(c) and replaced it with a new section, which provided the Attorney General with authority to waive removal for a much narrower class of deportable aliens.Id. Under the new section, the class of aliens eligible for waiver does not include anyone previously convicted of an aggravated felony as defined in the INA. Id. In St. Cyr, the United States Supreme Court addressed the issue, inter alia, of whether the repeal of INA § 212(c) was to be applied retroactively. 533 U.S. at 314-26.
To determine whether the repeal of INA § 212(c) was to be applied retroactively, the Supreme Court applied the two step analysis it had previously set out in Landgraf v. USI Film Products, 511 U.S. 244 (1994). St. Cyr, 533 U.S. at 315-26. The first step the Court took to decide whether the statute had a retroactive effect was "to ascertain whether Congress ha[d] directed with the requisite clarity that the law be applied retrospectively." Id. at 316 (internal citations omitted). After noting the IIRIRA section repealing § 212(c) did not expressly provide for a retroactive application, the Court determined that Congress had not "affirmatively considered the potential unfairness of retroactive application. . . ." Id. at 319-20. The Court turned to the second step of the Landgraf analysis, deciding whether the retroactive application of the statute had an impermissible retroactive effect.
The Court concluded that the IIRIRA repeal of § 212(c) "impose[d] an impermissible retroactive effect on aliens who, in reliance on the possibility of § 212(c) relief, pled guilty to aggravated felonies" and 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, 533 U.S. at 315, 326. In reaching its conclusion, the Court discussed its analysis for judging whether a statute acts retroactively.Id. at 321. "The inquiry . . . demands a common sense, functional judgment about whether the new provision attaches new legal consequences to events completed before its enactment."Id. (citing Martin v. Hadix, 527 U.S. 343, 357-58, (quotingLandgraf, 511 U.S. at 270)). "[T]he judgment whether a particular statute acts retroactively should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations." Id. If a statute "takes away or impairs vested rights acquired under existing laws, or . . . attaches a new disability, in respect to transactions or considerations already past" then a statute has retroactive effect. St. Cyr, 533 U.S. at 321. In deciding the specific facts of St. Cyr, the Court decided that the elimination of the possibility of § 212(c) relief for people who entered into plea agreements with the expectation that they would be eligible for such relief clearly attached a new disability with respect to a past transaction or consideration. Id.
In St. Cyr, the Court explained that a new disability attached to people who entered into plea agreements because there was a quid pro quo between the government and a criminal defendant. Id. Defendants waived several constitutional rights and granted the government benefits, such as a faster disposition of the case, in exchange for some advantage, which, in St. Cyr, was preserving the possibility of § 212(c) relief. Id. at 322-23. Because prosecutors would have already received the benefit of the plea agreement, facilitated by the defendant expecting the possibility of § 212(c) relief, it would be contrary to "familiar considerations of fair notice, reasonable reliance, and settled expectations," to hold that the subsequent repeal of § 212(c) deprived those defendants of such relief.Id. at 323-24 (quoting Landgraf, 511 U.S. at 270). The court concluded that, "applying IIRIRA § 304(b) [repealing § 212(c)] to aliens who pled guilty or nolo contendere to crimes on the understanding that, in so doing, they would retain the ability to seek discretionary § 212(c) relief would retroactively unsettle their reliance on the state of the law at the time of their plea agreement." St. Cyr, 533 U.S. at 325 n. 55.
While the factual holding of St. Cyr does not apply to this case, the legal analysis set out by the Supreme Court is applicable. The first step is to determine whether Congress has clearly directed that the statute be applied retroactively. St. Cyr, 533 U.S. at 316 (citing Martin, 527 U.S. at 352). The Court in St. Cyr found that the IIRIRA did not clearly indicate Congress' intent for the statute's retroactive application to aliens who pled guilty. Likewise, there is nothing to indicate Congress' intent for the retroactive application to aliens who proceeded to trial. See St. Cyr, 533 U.S. at 316-20 (discussing and dismissing the government's general argument that IIRIRA was a comprehensive revision of federal law intending to preclude the application of all old law and to apply the repeal of § 212(c) retroactively). This leads to the second step of theLandgraf retroactivity analysis, determining "whether depriving removable aliens of consideration for § 212(c) relief produces an impermissible retroactive effect for aliens who," like Atkinson, were convicted after a jury trial at a time when their conviction "would not have rendered them ineligible for § 212(c) relief."St. Cyr, 533 U.S. at 320.
The petitioner in this case argues that he is in the same position as the respondent in St. Cyr because both became eligible for § 212(c) relief upon their conviction, regardless of how the conviction was achieved. Atkinson also argues that the retroactive application of the IIRIRA impermissibly impacts his vested right in § 212(c) relief and imposes new disabilities on past transactions. Atkinson asserts that the Court in St. Cyr showed that St. Cyr had a vested right in § 212(c) relief when it stated, "Two legal consequences ensued from respondent's entry of a guilty plea in March 1996: (1) He became subject to deportation, and (2) he became eligible for a discretionary waiver of that deportation under the prevailing interpretation of § 212(c)." St. Cyr, 533 U.S. at 314-15. Atkinson contends that a vested right in pursuing § 212(c) relief exists at the moment of conviction without the need for bargaining or relying on a guilty plea, and that he had this vested right at the moment of his conviction. The elimination of possible § 212(c) relief would be an impermissible elimination of a vested right without clear congressional intent to do so and would attach a new disability to Atkinson's prior transactions and considerations.
The petitioner in this case also argues that this court should follow the argument proposed by Judge Sylvia Rambo of the Middle District of Pennsylvania in Ponnapula v. Ashcroft, 235 F. Supp.2d 397. In Ponnapula Judge Rambo applied the St. Cyr holding to an alien who chose to go to trial rather than plead guilty, ordering that the petitioner be given an opportunity to make a claim in Immigration Court for INA § 212(c) relief.Ponnapula, 235 F. Supp.2d at 403. The court determined inPonnapula that the fact that the petitioner was convicted at trial rather than by a guilty plea did not make St. Cyr inapplicable so long as the petitioner had shown that he had considered the availability of § 212(c) relief in deciding to proceed with a trial. Ponnapula, 235 F. Supp.2d at 402. The Third Circuit has heard oral arguments on the Ponnapula case but has not ruled on the case. For the sake of expediency this court will dispose of this case noting that the government may appeal.
Atkinson further argues that a rule limiting the availability of § 212(c) relief to aliens who plead guilty would disrupt the settled expectations of aliens who choose to go to trial. An alien may choose to go to trial for a number of reasons, and may consider trying to win his case outright, avoiding deportation and the cost of fighting it. In making this decision, an alien may also be aware that the crime he is charged with carries a maximum sentence that would allow him to be eligible for § 212(c) relief, even if he were to be convicted. If an alien knew that pursuing his constitutional right to trial would mean losing the possibility of § 212(c) relief, then he might choose to plead guilty rather than go to trial, regardless of his sentence.
The government responds that the St. Cyr holding only applies to aliens in the same position as St. Cyr, i.e., aliens who pled guilty to an "aggravated felony" in reliance on the availability of a § 212(c) waiver. Because those aliens who entered into plea agreements had relied on the availability of § 212(c) relief, and had a settled expectation regarding the law, it would be impermissible to no longer provide such relief. However, the government argues that an alien who chooses to go to trial would not have a settled expectation as to the availability of § 212(c) relief if convicted.
The government's argument in this case is consistent with decisions issued by several circuits that have considered the question of whether St. Cyr applies to aliens who were convicted after a trial. The Second Circuit has determined that St. Cyr only applies to aliens who plead guilty because aliens who choose to proceed to trial do not detrimentally change their position in reliance on the availability of § 212(c) relief. Rankine v. Reno, 319 F.3d 93, 99-100 (2d Cir. 2003), cert. denied, Lawrence v. Ashcroft, 124 S.Ct. 287 (2003). The Seventh Circuit has also held that where an alien fully contests state criminal charges and does not enter a guilty plea, the limiting of INA § 212(c) relief does not have an impermissible retroactive effect. Lara-Ruiz v. INS, 241 F.3d 934, 945 (7th Cir. 2001). The Ninth and Eleventh Circuits have reached similar decisions. See U.S.A. v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (held alien who does not plead guilty and exercises right to trial by jury does not come within exception to retroactive application of AEDPA § 440(d) for persons who plead guilty or nolo contendere in reliance upon INA § 212(c)); Brooks v. Ashcroft, 283 F.3d 1268, 1274 (11th Cir. 2002) (noting rational basis for distinguishing between allowing § 212(c) relief for aliens who plead guilty and denying § 212(c) relief for aliens convicted at trial). These cases, however, have incorrectly relied on St. Cyr's factual holding rather than St. Cyr's legal analysis, which is applicable to all aliens convicted prior to the repeal of INA § 212(c), in determining whether the repeal of INA § 212(c) can be retroactively applied to aliens convicted after a trial.
There are no precedential opinions in the Third Circuit regarding the issue presented in this case, only one unpublished opinion, Carey v. Ashcroft, which lacks precedential authority pursuant to I.O.P. 5.3 (3d Cir. 2003). In Carey v. Ashcroft, 45 Fed. Appx. 121 (3d Cir. 2002), the Third Circuit refused to extend the St. Cyr holding to aliens who chose to proceed to trial rather than give up their constitutional right to a trial by jury. Carey, 45 Fed. Appx. at 122-23. The Third Circuit noted that Carey, the petitioner, could not make a reliance claim similar to the one in St. Cyr where the petitioner had relied upon the availability of § 212(c) relief in deciding to plead guilty. Id.
Similar to this court, Judge Clifford Green of the Eastern District of Pennsylvania has determined that St. Cyr requires only that the Landgraf retroactivity analysis be used to determine whether a statute has been applied retroactively and impermissibly. Laidlaw v. Elwood, No. 02-CV-7829, page 5 (Memo. Op. Dec. 22, 2003). In Laidlaw, Judge Green determined thatSt. Cyr did not require an alien to give up of his constitutional right to trial to preserve his ability to request § 212(c) relief. Id. The court held that the IIRIRA repeal of INA § 212(c) could not be applied retroactively to the petitioner, who had been convicted by a jury, and ordered a § 212(c) hearing to be conducted. Id.
Laidlaw v. Elwood is pending appeal.
Based on the foregoing, this court determines that the IJ and BIA were in violation of the laws of the United States in deciding that Atkinson was not eligible for INA § 212(c) relief. Atkinson has not claimed that he relied on the availability of § 212(c) relief in considering whether to proceed to trial. Having relied on the possible availability of § 212(c) relief, however, is not the only reason that the retroactive application of the IIRIRA repealing INA § 212(c) would be impermissible. In this case, the retroactive application of the IIRIRA repealing § 212(c) would attach a new disability to Atkinson's past decision to proceed to trial. Atkinson chose to take advantage of his constitutional rights by electing a jury trial. He cannot be punished with a retroactive application of the repeal of § 212(c) for having taken advantage of his constitutional rights. Not permitting Atkinson to be considered for § 212(c) relief results in the impermissible retroactive application of the IIRIRA, imposing a new disability on a transaction or consideration already past, thus altering the legal consequences of Atkinson's prior decisions. As such, Atkinson falls within the purview of the Supreme Court's holding and legal analysis in St. Cyr. Having determined that the IIRIRA repeal of § 212(c) is impermissibly retroactive, the following recommendation is made:
RECOMMENDATION
AND NOW, this day of April 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for Writ of Habeas Corpus be GRANTED and that petitioner be provided a § 212(c) hearing to determine whether he is eligible for such relief.ORDER
AND NOW, this day of, 2004, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Linda K. Caracappa, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is GRANTED.
3. An INA § 212(c) hearing be conducted giving Atkinson the opportunity to make a claim for INA § 212(c) relief.