Opinion
99 Civ. 3333 (RCC)(KNF)
October 3, 2002
REPORT AND RECOMMENDATION
I. INTRODUCTION
Before the Court is Freddy Baez's ("Baez") pro se petition for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2241. Baez challenges a removal order entered against him by the Immigration and Nationalization Service ("INS"). Baez contends that the INS's Bureau of Immigration Appeals ("BIA") erred when it concluded that he was ineligible for a discretionary waiver of deportation pursuant to former section 212(c) ("§ 212(c)") of the Immigration and Nationality Act ("INA"). Baez also seeks an order declaring that he is entitled to medical coverage and social security benefits based upon his payment of federal withholding taxes to the Social Security Administration and the Internal Revenue Service.
18 U.S.C. § 1182(c) (repealed by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") § 304[b]).
The respondents have sought an order: (1) remanding this matter to the BIA for further administrative proceedings consistent with the United States Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001); (2) permitting the respondents to raise any applicable arguments in the administrative proceedings; and (3) dismissing petitioner's application for a writ of habeas corpus, with prejudice and without costs or attorney's fees to either party, pursuant to Rule 41 of the Federal Rules of Civil Procedure.
For the reasons set forth below, I recommend that the petition be granted to the extent of remanding to the BIA for further proceedings, consistent with federal law, concerning petitioner's request for § 212(c) discretionary relief from deportation.
II. BACKGROUND
Baez is a native and citizen of the Dominican Republic who was admitted to the United States as a lawful permanent resident on September 9, 1968. In December 1993, Baez was convicted and sentenced to a term of imprisonment of one year, based on his plea of guilty to assault in the second degree in violation of N.Y. Penal Law § 120.05.
In May 1998, the INS commenced removal proceedings against Baez by filing a notice to appear charging that Baez was removable from the United States under INA § 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony. After removal hearings, an Immigration Judge ("IJ") determined that Baez was removable as charged and that, based on his criminal record, Baez was statutorily ineligible for any relief from removal. Accordingly, the IJ ordered Baez removed to the Dominican Republic.
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).
Baez appealed the IJ's decision to the BIA. On appeal, Baez claimed, among other things, that he was entitled to relief from removal under § 212(c), which was in effect at the time of his 1993 conviction. The BIA dismissed the appeal on March 5, 1999, finding that Baez was not eligible for § 212(c) relief.
In April 1999, Baez petitioned the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his order of removal. On August 25, 1999, the respondents requested that Baez's habeas corpus petition be removed from the Court's active calendar pending the resolution of certain cases then before the Second Circuit Court of Appeals. By order dated September 17, 1999, the respondents' application was granted and petitioner's removal from the United States was stayed pending the resolution of the matter.
On April 10, 2002, the respondents advised the Court that it appeared from the administrative record in this case that petitioner may be eligible, under the Supreme Court's decision in St. Cyr, to apply for relief from deportation under § 212(c). Accordingly, the respondents requested an order remanding the case to the BIA and dismissing the petitioner's application for a writ of habeas corpus. The respondents also wrote to the petitioner advising him of this request.
Petitioner replied to the respondents' letter on August 16, 2002. In his response, petitioner consented to the respondents' application for an order remanding the action to the BIA, but requested that the order be "without prejudice and without costs or attorney's fees to either party." In addition, the petitioner requested that the court keep jurisdiction of the case, and hold the petition for a writ of habeas corpus in abeyance, so that the court might address "the fundamental issues raised concerning my vested rights for payment of social security if the final administrative action is to order my removal to the Dominican Republic."
Respondents state that they have no objection to petitioner's request that the order of remand be issued without prejudice and without costs or attorney's fees. Respondents contend, however, that the court need not keep jurisdiction of the matter because petitioner's social security benefits have not been terminated at this time and, thus, any claim concerning such benefits is not ripe for consideration. Further, respondents contend, such a claim would become moot if petitioner receives discretionary relief from deportation. Moreover, should the Social Security Administration determine to modify or terminate petitioner's social security benefits, petitioner would be required to exhaust his administrative appeals before challenging that ruling in federal court. See 20 C. F. R. 404.900. Since the remand of this case to the BIA would be without prejudice to the petitioner's assertion of any claims concerning his social security benefits after he exhausts his administrative remedies, respondents assert, the court need not retain jurisdiction of the matter.
III. DISCUSSION
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 of 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 in 1996) (quoted in St. Cyr, 533 U.S. at 295, 121 S.Ct. at 2276).
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 an alien 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 provisions 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. The Court, in reaching its conclusion, 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).
Baez claims that he is eligible for relief pursuant to § 212(c) because the conviction which served as the predicate for his order of removal, namely, his 1993 conviction for assault in the second degree, was obtained through a plea agreement. Baez also claims that, under the 1990 amendment to § 212(c), which precluded from discretionary relief anyone convicted for an aggravated felony who had served a term of imprisonment of at least five years, he remained eligible for a § 212(c) waiver, because his 1993 conviction carried a sentence of only one year's imprisonment. Therefore, Baez 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.
The parties have agreed that the matter should be remanded to the BIA for further administrative proceedings concerning Baez's eligibility for § 212(c) relief. Petitioner requests, in addition, that the court retain jurisdiction of the case so that, in the event petitioner is removed to the Dominican Republic, the court may address the matter of petitioner's entitlement to social security benefits. As the respondents have indicated, however, no action has been taken by the Social Security Administration to modify or terminate petitioner's social security benefits and petitioner has not yet raised any claim concerning these benefits. Therefore, petitioner's interest in having the court keep jurisdiction of the case for the purpose of addressing the issue of his entitlement to social security benefits is premature.
Under the circumstances, it appears appropriate that petitioner's application for a writ of habeas corpus be granted solely to the extent of remanding this case to the BIA for further proceedings, consistent with federal law, concerning Baez's request for § 212(c) discretionary relief. See Greenidge v. INS, 204 F. Supp.2d 594, 595, 600 (S.D.N.Y. 2001); Alcaide-Zelaya v. McElroy, No. 99 Civ. 5102, 2000 WL 1616981, at *1, 6 (S.D.N.Y. Oct. 27, 2000).
The parties have requested that petitioner's habeas corpus petition be dismissed without prejudice. A dismissal without prejudice is appropriate where inter alia, a petitioner has not exhausted his administrative remedies. See, e.g., Concepcion v. Reno, No. 00 Civ. 7979, 2001 WL 893357, at *1, 4 (S.D.N.Y. Aug. 8, 2001). In the instant case, petitioner has exhausted such remedies; therefore, dismissal without prejudice would be inapposite.
IV. RECOMMENDATION
For the foregoing reasons, I recommend that petitioner's application for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2241, be granted to the extent of remanding the application to the BIA for further proceedings, consistent with federal law, concerning petitioner's request for § 212(c) discretionary relief from deportation. I recommend further that petitioner's requests (a) for an order declaring that he is entitled to medical coverage and social security benefits, and (b) that the court keep jurisdiction of his case for the purpose of addressing that issue, be denied.
V. 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 Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl Street, Room 1950, 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 Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, 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).