Opinion
No. 04 Civ. 01058 (RPP).
February 25, 2005
Carlos G. Barahona, New York, NY, Petitioner Pro Se.
David N. Kelley, U.S. Attorney, Southern District of New York, New York, NY, Counsel for Respondent.
OPINION AND ORDER
On February 9, 2004, Carlos G. Barahona ("petitioner" or "Barahona"), proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, against John Ashcroft, U.S. Attorney General, challenging his removal order. Petitioner asserts that he is eligible for removal relief under two provisions of the Immigration and Nationality Act of 1952, as amended ("INA"). First, petitioner contends he is eligible for removal relief under former section 212(c) of the INA ("section 212(c) relief"), 8 U.S.C. § 1182(c) (1994) (repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, Div. C, Title III-A, § 304(b), 110 Stat. 3009-546, 3009-597), because the criminal conviction that served as the cause for his removal occurred before section 212(c) relief was completely repealed. (Pet. for Habeas Corpus, dated Dec. 31, 2003 (filed Feb. 9, 2004) ("Pet."), at 2; Pet'r Resp. to Resp't Opp'n Mem., dated May 19, 2004 ("Pet'r Resp."), at 2.) Second, petitioner claims that he is eligible for removal relief under section 212(h) of the INA ("section 212(h) relief") because of the hardship his removal would cause to his children, who are citizens of the United States. (Pet. at 2; Pet'r Resp. at 2.) The Government opposes the petition and requests it be denied on its merits. For the reasons set forth below, the petition is denied.
Petitioner does not specifically state that his children are U.S. citizens. However, all four were born in New York City, New York and, thus, are U.S. citizens. (See Pet., attached Children's Birth Records and Social Security Cards.)
BACKGROUND
Petitioner, who was born on February 28, 1964, is a native and citizen of Honduras. (Pet. at 1; Resp't Return, dated Apr. 19, 2004, Ex. A at 108-11 (INS Notice to Appear addressed to Petitioner, dated Dec. 12, 2000 ("NTA")).) In or about 1981, Barahona entered the United States without inspection. (Resp't Return Ex. A at 108-10.) On November 18, 1988, pursuant to section 245A of the INA, petitioner adjusted his legal status in the United States to that of a temporary resident. (Id.)
Exhibit A of the Respondent's Return contains relevant documents selected from the United States Immigration and Custom Enforcement's ("ICE") administrative file from petitioner's removal proceedings. As of March 1, 2003, ICE replaced the Immigration and Naturalization Service ("INS") with respect to issues relating to the enforcement of the immigration laws. See Brown v. Ashcroft, 360 F.3d 346, 348 (2d Cir. 2004). The Court refers to the INS in this decision because the rulings in this case were made when the INS was operational.
The page numbers of Exhibit A refer to Bates numbers, e.g. 0000108-11.
Petitioner claims that he became a "lawful permanent resident" of the United States on November 18, 1988. (Pet. at 1.) However, INS records show Barahona as a temporary resident, and during the removal proceeding and in this action, he has presented no evidence demonstrating otherwise.
Petitioner is the biological father of four children, all of whom were born in the United States. (Pet. at 1.) His son, Brian Carlos, was born on September 25, 1989. (Id., attached Birth Certificates.) The mother of Brian Carlos, Zoila Cardenas, has suffered from a cerebral aneurysm with nonruptured subarachoid hemorrhage, which has caused headaches, dizziness and nausea since June 11, 2000. (Id., attached Certificate of Hospital Care from Elmhurst Hospital Center, dated Aug. 20, 2002.) Petitioner also had two children, Estela Tatiana, who was born January 27, 1990, and Carlos Gustavo, who was born February 8, 1991, with Silvia M. Lara. (Id., attached Birth Certificates.) Petitioner's fourth child, Iris Maritza, was born April 26, 1992. (Id.)
On June 20, 1996, a judgment of conviction was entered in this District, after a jury found Barahona guilty in 1994 of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and of narcotics conspiracy, in violation of 21 U.S.C. § 846. (Resp't Return Ex. A at 80-84 (Petitioner's Judgment in a Criminal Case).) Petitioner was sentenced to 124 months in prison and five years of supervised release for each of the offenses, with the sentences running concurrently. (Id.) On May 23, 1997, upon petitioner's appeal of his sentence and conviction, the Second Circuit affirmed the district court's judgment. See United States v. Sanin, 113 F.3d 1230, 1997 WL 280083 (2d Cir. May 23, 1997). On or about March 1, 2002, Barahona was released into INS custody, pursuant to an immigration detainer, after serving 68 months of his sentence and being credited for the 1,205 days he spent in jail awaiting trial. (Resp't Return Ex. A at 111-14.)
In his response, Petitioner acknowledges he was convicted after a jury trial of possession of cocaine with intent to distribute. (Pet'r Resp. at 1.)
Based on petitioner's 1996 conviction, INS commenced removal proceedings against petitioner on March 1, 2002, pursuant to sections 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the INA, providing for the removal of aliens convicted, respectively, of an aggravated felony as defined in section 101(a)(43)(B) of the INA and of certain drug crimes. (Id. Ex. A at 108-11 (NTA).) At petitioner's removal hearing on April 2, 2002, the Immigration Judge ("IJ") informed petitioner of his legal rights and adjourned proceedings until April 11, 2002, to allow petitioner to obtain an attorney. (Id. Ex. A at 11-24.) When the hearing resumed on April 11, 2002, petitioner informed the IJ of his decision to proceed pro se. (Id. Ex. A at 26.) During this hearing, Barahona admitted the truth of all the factual allegations contained in the NTA and conceded removability as charged. (Id. Ex. A at 27-31, 66-67.) Petitioner also testified that "his case" took place in 1993, that he did not plead guilty but went to trial in 1994, and that he was found guilty of possession with intent to distribute cocaine. (Id. Ex. A at 30-31.) He stated that he was sentenced on June 20, 1996, and that the appeal of his conviction had been denied. (Id.) When asked about his immigration status during the removal hearing on April 11, 2002, petitioner contested the assertion that he had only temporary resident status and asked the IJ whether the "old law" would apply to his conviction. (Id. Ex. A at 28-32.) During the IJ's questioning of Barahona concerning his immigration status, petitioner stated that he had been granted temporary residence status on November 18, 1988, and that he had received a notice from Immigration granting him permanent resident status. (Id. Ex. A at 29.) He did not have a copy of the notice or any evidence that he had applied for permanent resident status and admitted he never went to get a green card. (Id. Ex. A at 35-36.)
The INS attorney, relying on a computer printout record maintained by INS, agreed that petitioner had been granted temporary resident status but stated INS had no evidence of a further adjustment of status. (Id. Ex. at 34-35.) The IJ further questioned petitioner, and he stated that he did not go to get his green card and that he did not have any documents to demonstrate his application for or receipt of a green card. (Id. Ex. A at 35-36.) The IJ informed Barahona that without permanent resident status, he could not make an application for section 212(c) relief. (Id. Ex. A at 41-44.) The IJ then continued the hearing until April 25, 2002, to allow Barahona time to prove that he had applied for or received a green card. (Id. Ex. A at 46-48.)
The computer printout was only marked for identification on April 11, 2002. (Id. Ex. A at 43, 66.) During the hearing on April 11, 2002, the INS attorney attempted to file Barahona's amnesty application for temporary resident status under section 245A(a) of the INA. However, the IJ did not permit the submission of this document because this application should be confidential. (Resp't Return Ex. A at 32-34.) See also 8 U.S.C. § 1255a(c)(5).
A green card, which is an alien registration receipt card, provides evidence of an alien's status as a legal permanent resident ("LPR") in the United States. See Etuk v. Slattery, 936 F.2d 1433, 1442 (2d Cir. 1991).
On April 25, 2002, the IJ granted petitioner's bond request and ordered him released from INS custody under a $10,000 bond. (Id. Ex. A at 78.) Additionally, the IJ adjourned the proceeding again to allow petitioner to find an attorney. (Id. Ex. A at 50-54.) On August 6, 2002, Barahona appeared with an attorney, who submitted a package of information about petitioner to the IJ. (Id. Ex. A at 67.) Counsel for the petitioner asserted that because the crime was committed in 1993 and petitioner was convicted after jury trial in 1994, petitioner would like to reserve his right to seek section 212(c) relief. Counsel also claimed that INS abused its prosecutorial discretion by waiting until passage of AEDPA and IIRIRA to initiate petitioner's removal proceedings. (Id. Ex. A at 67-68.)
On August 6, 2002, the IJ found Barahona ineligible for section 212(c) relief because he had not pleaded guilty, but rather exercised his right to a jury trial. (Id. Ex. A at 7-9 (containing Oral Dec. of IJ).) The IJ also found that petitioner was ineligible for any other form of relief and ordered him removed to Honduras. (Id.)
Barahona appealed the IJ's decision and requested relief from removal under section 212(c) and section 212(h). Barahona also argued (1) that the INS abused its prosecutorial discretion by initiating removal proceedings on December 12, 2000, and (2) that, had INS placed the petitioner in deportation proceedings by issuance of an Order to Show Cause prior to April 24, 1996 and before the district court's entry of judgment, the petitioner could have sought section 212(c) relief at that time. (Id. Ex. A at 4-6 (Pet'r Br. in Supp. of Appeal).) On December 9, 2003, the Board of Immigration Appeals ("BIA") dismissed his appeal. (Id. Ex. A at 2-3.) The BIA found that there was insufficient evidence indicating that Barahona had changed his status to lawful permanent resident ("LPR") and even if he were a LPR, he would have been ineligible for section 212(c) relief because he had not pleaded guilty. (Id.) The BIA also rejected petitioner's claim that INS abused its discretion by failing to initiate proceedings prior to AEDPA and IIRIRA, pointing out that Barahona's conviction was entered after the effective date of AEDPA and conviction for an aggravated felony rendered him ineligible for section 212(c) relief. (Id.)
DISCUSSION
This Court has jurisdiction over petitioner's § 2241 habeas petition, specifically to address whether the petitioner is eligible for section 212(c) relief or for section 212(h) relief, because, under § 2241, federal courts retain jurisdiction over questions of law raised by criminal aliens in habeas corpus petitions seeking review of their final removal orders. See Rankine v. Reno, 319 F.3d 93, 97-98 (2d Cir. 2003) (citingCalcano-Martinez v. INS, 232 F.3d 328, 343 (2d Cir. 2000),aff'd, 533 U.S. 348 (2001)). However, "federal jurisdiction over § 2241 petitions does not extend to review discretionary determinations by the IJ and the BIA." Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001).
I. Personal Jurisdiction over Respondent
As a threshold matter, this Court must decide whether to grant the Government's request that this Court substitute Edward McElroy, New York City ICE Field Office Director, as respondent. The Government argues that McElroy is the proper respondent because petitioner is currently in his custody. (Resp't Mem. in Opp'n to Pet. for Writ of Habeas Corpus, dated Apr. 19, 2004 ("Resp't Mem."), at 1 n. 1 (citing 28 U.S.C. §§ 2242 (stating that applicant shall allege the name of "person who has custody" and that the petition may be amended as provided by the rules of civil procedure) and 2243 (stating that the writ be directed to the "person having custody"); Carvajales-Cepeda v. Meissner, 966 F. Supp. 207, 209 (S.D.N.Y. 1997)).
The Supreme Court and the Second Circuit have both specifically declined to determine whether the Attorney General is a proper respondent in a case such as this one. Rumsfeld v. Padilla, 124 S. Ct. 2711, 2718 n. 8 (2004); Henderson v. INS, 157 F.3d 106, 128 (2d Cir. 1998). The district courts of the Southern and Eastern Districts of New York are split over this issue.Compare, e.g., Perez v. Ashcroft, No. 02-10292 (NRB), 2003 U.S. Dist. LEXIS 14672, at *8 (S.D.N.Y. Aug. 25, 2003) (stating that the Attorney General is the proper respondent);Alcaide-Zelaya v. McElroy, Nos. 99-5102 (DC), 99-9999 (DC), 2000 U.S. Dist. LEXIS 15714, at *12-13 (S.D.N.Y. Oct. 27, 2000) (same), with, e.g., Belvett v. Ashcroft, No. 00-2463 (LMM), 2002 U.S. Dist. LEXIS 3168, at *2 (S.D.N.Y. Feb. 27, 2002) (stating that the Attorney General is not the proper respondent);Carvajales-Cepeda v. Meissner, 966 F. Supp. 207 (S.D.N.Y. 1997) (same). The few cases decided after the Supreme Court's decision in Padilla have found the Attorney General to be the proper respondent. Batista-Taveras v. Ashcroft, No. 03-1968 (LAK), 2004 U.S. Dist. LEXIS 19136 (S.D.N.Y. Sept. 23, 2004);Garcia-Rivas v. Ashcroft, No. 04-292 (NRB), 2004 U.S. Dist. LEXIS 12627 (S.D.N.Y. July 7, 2004).
Although the Second Circuit in Henderson did not resolve this issue, the Court discussed several doctrinal and practical arguments both in favor of and against holding the Attorney General as the proper respondent. 157 F.3d 124-28. This Court finds the arguments in favor of holding the Attorney General as the proper respondent more persuasive. These reasons include:
(1) [T]here is a preference in this area for a "practical," "flexible" approach; (2) the Attorney General has the power to produce petitioner and is indisputably the ultimate decisionmaker on matters concerning INS and petitioner's removal; (3) Congress has "consistently designated the Attorney General as the legal custodian" of aliens such as petitioner, and the Attorney General is "named as a proper respondent in most court actions reviewing the legality of removal orders"; and (4) there is a compelling practical concern that the government can "seriously undermine the remedy of habeas corpus" by detaining so large a number of aliens in one facility that the local district court is overwhelmed by a flood of habeas petitions.Alcaide-Zelaya, 2000 WL 1616981, at *4 (citing Henderson, 157 F.3d at 125-27).
Accordingly, the Court declines to substitute Edward McElroy as respondent in this proceeding in place of John Ashcroft, U.S. Attorney General.
II. Section 212(c)
A. Section 212(c) Legal Background
Prior to passage of ADEPA and IIRIRA in 1996, certain aliens facing deportation could apply to the Attorney General for a discretionary waiver of deportation under section 212(c). The Attorney General, pursuant to section 212(c), could waive the deportability of a criminal alien, if the alien could show that: 1) he was a lawful permanent resident of the United States ("LPR"); 2) he had an unrelinquished domicile in the United States of seven consecutive years; and 3) he had not been convicted of an aggravated felony for which he served a term of imprisonment of five years or longer. See 8 U.S.C. § 1182(c) (1994). In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), enacted April 24, 1996, which barred
section 212(c) relief for aliens who had been convicted of substance offenses or aggravated felonies "regardless of time served in prison." AEDPA § 440(d), 110 Stat. at 1277. Later in 1996, Congress passed IIRIRA, enacted September 30, 1996, which completely repealed section 212(c) and replaced this provision with a new form of relief called "cancellation of removal." See 8 U.S.C. 1229b. Cancellation of removal, however, does not allow the Attorney General to cancel removal proceedings for aliens convicted of aggravated felonies. See 8 U.S.C. § 1229b. Thus, in removal proceedings initiated after April 1, 1997, the effective date of IIRIRA, permanent and nonpermanent resident aliens convicted of an aggravated felony are no longer eligible for any form of discretionary relief from removal.
Cancellation of removal is available to aliens who have been admitted to the U.S. for permanent residence for not less than five years, have continually resided in the U.S. for seven years, and have not been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a). Cancellation of Removal is also available to nonpermanent residents, but they must not have a conviction of certain criminal offenses, including conviction of a controlled substance offense or an aggravated felony. See 8 U.S.C. § 1229b(b).
Subsequent to these new provisions, the Supreme Court held that ADEPA § 440(d) and IIRIRA § 304(b) could not be retroactively applied to criminal aliens who pled guilty at a time when section 212(c) relief was available to them. INS v. St. Cyr, 533 U.S. 289, 321-26 (2001). Thus, these aliens could still apply for discretionary relief under section 212(c). The Supreme Court was particularly concerned with the retrospective "new disability" these laws attached to an alien's decision to enter a plea agreement that was founded on the "expectation that they would be eligible for [section 212(c) relief]." Id. at 321. The Court stated that the aliens "almost certainly relied upon [the likelihood of receiving section 212(c) relief] in deciding whether to forego their right to trial" and pled to preserve their eligibility for this relief. Id. at 325. Following St. Cyr, the Second Circuit held that IIRIRA's repeal did not have an impermissible retroactive effect on aliens who chose a jury trial, rather than a plea agreement, and were convicted prior to the repeal. Rankine v. Reno, 319 F.3d 93, 102 (2d Cir. 2003). The Second Circuit pointed out that none of the criminal aliens altered their position in reliance on continued eligibility for section 212(c) relief, but rather decided to go to trial relying on their claims of innocence. Id. at 100.
The Second Circuit, however, narrowed this holding in Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004). The petitioner inRestrepo was convicted after a jury trial in 1992, and deportation proceedings were initiated after the enactment of ADEPA but before the enactment of IIRIRA. The Second Circuit distinguished Restrepo from Rankine, stating that "Rankine 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" and that the reliance claim in Restrepo was distinct and not addressed inRankine. Restrepo, 369 F.3d at 636. In Restrepo, the petitioner argued that he had foregone affirmatively filing an application for section 212(c) relief after his conviction because he wished to build a stronger record for his application and then file for this relief. Id. at 633. Thus, the petitioner argued, he had detrimentally relied on the continued existence of section 212(c) relief, and retroactive application of ADEPA was invalid in his case because of this reliance. The Second Circuit agreed with the petitioner's retroactivity argument and remanded the case to the district court to determine whether the petitioner could avail himself of this argument. Id. at 638-39.
B. Application
Even assuming that section 212(c) relief were available to Barahona based on a retroactivity argument, petitioner would not be eligible for this relief as it existed prior to the enactment of ADEPA and IIRIRA. First, petitioner failed to establish his status as a LPR, which is a requirement of section 212(c) relief.See section 212(c) (stating that "[a]liens lawfully admitted for permanent residence . . . may be admitted in the discretion of the Attorney General . . ."). In removal proceedings, the alien has the burden of demonstrating that he is eligible for relief from removal. See 8 C.F.R. § 240.8(d) (2003). During the removal proceedings, INS agreed that petitioner had been granted temporary resident status on November 18, 1988, but denied he had adjusted his status to that of LPR. (Resp't Return Ex. A at 34-35.) Petitioner stated that he was a LPR, but did not submit any documentation demonstrating this adjustment. (Resp't Return Ex. A at 35-36.)
To obtain LPR status, a temporary resident must apply for adjustment of status within 43 months of the date he was granted his temporary resident status. See INA § 245A(b)(1), 8 U.S.C. § 1225a(b)(1) (2000). Temporary resident status will be terminated if a temporary resident fails to apply within the specified time period. INA § 245A(b)(2)(C), 8 U.S.C. § 1225a(b)(2)(c) (2000).
Second, even assuming petitioner was a LPR and section 212(c) relief was available based on his retroactivity argument, his conviction of an aggravated felony, for which he served more than five years of imprisonment, would render him ineligible for relief under section 212(c). See INA § 212(c) (stating that this section "shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least five years").
Finally, again assuming petitioner was a LPR, petitioner's argument for the retroactive application of section 212(c) relief to his case fails because the category of aliens who are eligible for this relief is limited. Petitioner argues that because the acts that constituted the crime occurred before AEDPA and IIRIRA, he is eligible for section 212(c) relief, citing Drax v. Reno, 338 F.3d 98 (2d Cir. 2003), andMohammed v. Reno, 309 F.3d 95 (2d Cir. 2002). (Pet. at 2.) However, neither of these cases is availing to petitioner, and his argument is foreclosed by the Second Circuit's decision inEvangelista v. Ashcroft, 359 F.3d 145 (2d Cir. 2004).
Unlike Barahona, who chose to proceed with a jury trial, the LPR in Drax pleaded guilty to two criminal charges. Drax, 338 F.3d at 101. Additionally, Drax concerned another statute modifying the INA and a form of relief not applicable to Barahona. Thus, Drax is inapplicable to this case.
Similarly, Mohammed is unavailing to the petitioner. InMohammed, the Second Circuit reaffirmed its pre-St. Cyr decision, Domond v. INS, 244 F.3d 81 (2d Cir. 2001), holding that the BIA's denial of section 212(c) relief was not impermissibly retroactive to a petitioner who committed a crime prior to the repeal of section 212(c), but was found guilty after the repeal. Mohammed, 309 F.3d at 102.
In Domond, the petitioner committed the offense in November 1994 and pleaded guilty on November 8, 1996, after the passage of AEDPA. Domond, 244 F.3d at 83.
In Evangelista, the petitioner committed the crime before AEDPA became effective and was convicted of an aggravated felony after a jury trial in October 1996, after AEDPA § 440(d) had eliminated section 212(c) relief for him. 359 F.3d at 148. The petitioner's removal proceedings began in 1998, after IIRIRA's repeal of section 212(c) became effective. Id. The petitioner in Evangelista contended that he had relied on the availability of section 212(c) relief, even though section 212(c) had been repealed at the time of his conviction. Id. at 153. The Second Circuit rejected the petitioner's argument, noting that Rankine was directly on point.Evangelista, 359 F.3d at 155. The Second Circuit noted that the only difference between Rankine and Evangelista was that inEvangelista the petitioner was convicted after trial subsequent to the passage of AEDPA and IIRIRA, while in Rankine the petitioners were convicted after trial before the passage of AEDPA or IIRIRA. Evangelista, 359 F.3d at 155. The Court noted that the petitioners in Rankine, if anything, had an even stronger case than the petitioner in Evangelista and held that the BIA's denial of section 212(c) relief was not impermissibly retroactive. Id. at 155 n. 3.
This case differs from Rankine and Evangelista, in that the petitioner's judgment of conviction was entered on June 20, 1996, after the passage of AEDPA and prior to the enactment of IIRIRA. However, Barahona appealed his conviction so that it did not become final until after May 23, 1997, when the Second Circuit affirmed his conviction and time to apply for a writ of certiorari had expired, well after the effective dates of both acts. In this case, Barahona committed the crimes prior to AEDPA and IIRIRA and was placed in deportation proceedings after his conviction became final and after the effective date of IIRIRA, similar to the petitioners in Rankine and Evangelista. According to the reasoning in those cases, Barahona did not rely on the availability of section 212(c) relief when choosing a jury trial. Similar to the petitioner in Evangelista, Barahona has a weaker argument for reliance than the petitioners in Rankine, as section 212(c) relief had become unavailable to aggravated felons, such as petitioner, upon the effective date of AEDPA on April 24, 1996, long before the time when petitioner's conviction became final. Thus, under the reasoning of Rankine andEvangelista, AEDPA and IIRIRA are not impermissibly retroactive with respect to Barahona.
Petitioner also cites Restrepo to support his claim of eligibility for section 212(c) relief. In Restrepo, the petitioner was convicted after a jury trial in 1992 before the passage of ADEPA and IIRIRA, and deportation proceedings were initiated after the passage of ADEPA. 369 F.3d at 630. In the instant case, however, Barahona's conviction became final after May 23, 1997, over a year after the passage of ADEPA, which eliminated the possibility of section 212(c) relief. Petitioner could not detrimentally rely on the continuing existence of 212(c) relief after his conviction as this relief did not exist at the time of the entry of his judgment of conviction or when his conviction became final.
II. Section 212(h)
Petitioner also requests that this Court review his eligibility for a discretionary waiver, pursuant to section 212(h) of the INA, based on the hardship to his four U.S. citizen children. Under section 212(h), the Attorney General may grant a waiver of inadmissibility
Petitioner claims that he is entitled to section 212(h) relief "because [his] misconduct predated the enactment of the Section 348 of the IIRIRA." (Pet'r Resp. at 1.) Section 348(a) of IIRIRA amended section 212(h) by adding provisions, including conviction of an aggravated felony, that would disqualify a LPR from eligibility for this type of waiver. Even if petitioner could avail himself of the retrospective argument, he would still be ineligible for section 212(h) relief because of his drug conviction.
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) (2004).
Petitioner's citation to Beharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003), in support of his claim of hardship is unavailing. The Second Circuit in Beharry did not examine the effect of an alien's removal on his children as claimed by petitioner, but rather held that the district court did not have jurisdiction to consider whether the petitioner was entitled to a hearing on section 212(h) relief because he had not raised this claim to the IJ or BIA. Id. at 63. Accordingly, the Second Circuit reversed the district court's grant of habeas corpus.Id. at 63-64.
Although the Attorney General may waive certain criminal grounds of inadmissibility, section 212(h) cannot be used to waive controlled substance offenses, except when that offense was a "single offense of simple possession of 30 grams or less of marijuana." 8 U.S.C. § 1182(h). Thus, Barahona's conviction for possession with intent to distribute cocaine, renders him ineligible for this form of relief.
Petitioner points out that the aggravated felony bar to eligibility for the section 212(h) waiver applies to LPRs, rather than to temporary resident aliens. (Pet'r Resp. at 1.) Although petitioner is correct in regards to the applicability of the aggravated felony bar to LPRs, a waiver of admissibility under section 212(h) remains unavailable to the petitioner because of his controlled substance conviction. Thus, Barahona is ineligible for relief under this section.
Petitioner cites to Jankowski-Burczyk v. INS, 291 F.3d 172 (2d Cir. 2002), to support this argument. (Pet'r Resp. at 1.) This case is unavailing to petitioner. In Jankowski-Burczyk, the Second Circuit held that section 212(h) presented no equal protection concern under the Constitution, even though non-LPRs convicted of an aggravated felony were eligible for relief under this section, but LPRs convicted of an aggravated felony were ineligible. Id. at 180-81.
Additionally, in his response, petitioner contests that his conviction should be classified as one of moral turpitude, not an aggravated felony, citing Matter of Khourn, 211 N Dec. 1041 (BIA 1997). However, petitioner misunderstands the meaning ofKhourn. In Khourn, the alien had been convicted of a drug charge, similar to the petitioner in this case, and in 1992, INS initiated deportation proceedings against him under section 241(a)(2)(B)(i) as an alien convicted of violating a law related to a controlled substance and under section 241(a)(2)(A)(iii) for an aggravated felony conviction. Id. at 1042. The deportation proceedings were terminated because the alien was granted a waiver of deportability under section 212(c), which at that time allowed waivers for aliens convicted of aggravated felonies who had not served a term of five years. Id. In 1995, Khourn was convicted of another crime, theft of property, and INS instituted deportation proceedings again, this time under section 241(a)(2)(A)(ii) for conviction of two or more crimes involving moral turpitude. Id. The theft conviction was a crime of moral turpitude, but alien argued that the drug conviction was not a crime a moral turpitude. Id. Thus, the issue was not whether the drug conviction was an aggravated felony or a crime of moral turpitude, but rather whether the drug conviction, which was an aggravated felony, could also be considered a crime of moral turpitude under the INA. The BIA held that the drug conviction was a crime of moral turpitude and, thus, the alien was deportable as charged. Id. at 1049-50. This decision, however, in no way affected the status of the drug crime as an aggravated felony under the INA.
Additionally, a section 212(h) is a waiver of admissibility and does not apply to deportable aliens, such as the Petitioner, unless the alien seeks this waiver along with an adjustment of status application. See, e.g., Matter of Zoellner, 151 N Dec. 162 (BIA 1974); Matter of Parodi, 171 N Dec. 608 (BIA 1980). The record does not indicate that petitioner has applied to the Director for an adjustment of status.
CONCLUSION
For the foregoing reasons, petitioner's habeas corpus petition is denied.IT IS SO ORDERED.