Opinion
00 Civ. 2371 (LTS) (JCF)
June 19, 2003
MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION
On March 5, 2003, Magistrate Judge James C. Francis issued a Report and Recommendation ("Report") recommending that the Petitioner's claim of derivative citizenship be transferred to the United States Court of Appeals for the Second Circuit and that Petitioner's claims that he was improperly denied consideration for waivers of deportation pursuant to Sections 212(c) and 212(h) of the Immigration and Nationality Act ("INA") be dismissed. Petitioner has not filed any objections to the Report.
In reviewing the Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West 2002). "To accept the report and recommendation of a magistrate to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted); see also Pizarro v. Bartlet, 776 F. Supp. 815, 817 (S.D.N.Y. 1991 (court may accept report if it is "not facially erroneous"). The Court is required to make a de novo determination as to the aspects of the Report to which objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
The Court has thoroughly reviewed Magistrate Judge Francis' comprehensive and well-reasoned Report and has determined that there is no clear error on the face of the record. With the exception of footnote 8 of the Report, which the undersigned declines to adopt, the Court adopts the Report for the reasons stated therein. Petitioner's claim of derivative citizenship is hereby transferred to the United States Court Appeals for the Second Circuit and his claims that he was improperly denied consideration for waivers of deportation pursuant to Sections 212(c) and 212(h) of the INA are dismissed.
The Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1) (West 2002). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2) (West 2002); see generally United States v. Perez, 129 F.3d 255, 259-60 (2nd Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appealability. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).
Magistrate Judge Francis' Report follows.
SO ORDERED.
TO THE HONORABLE LAURA TAYLOR SWAIN, U.S.D.J.:
Juan Antonio Cartagena-Paulino brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He challenges an order that he be removed from the United States following his convictions for criminal possession of a weapon and kidnapping, deportable offenses as defined in Sections 241(a)(14) and 241(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(C) and 8 U.S.C. § 1227(a)(2)(A)(iii). In his petition, Mr. Cartagena-Paulino claims (1) that he has derived United States citizenship through his father's status as a United States citizen, and therefore, the Immigration and Naturalization Service ("INS") should be prohibited from deporting him, and (2) that he is eligible to receive consideration for a waiver from deportation under either Sections 212(c) or 212(h) of the INA. For the reasons that follow, I recommend that Mr. Cartagena-Paulino's derivative citizenship claim be transferred to the Court of Appeals for the Second Circuit and his claims for discretionary relief be denied.
Background[1]
I presented the majority of these facts in a Memorandum and Order I issued in this case on May 18, 2001. (Memorandum and Order dated May 18, 2001 ("5/18/01 Order")).
The petitioner was born in the Dominican Republic on January 7, 1968 to Juan Antonio Cartagena and Maria Virgen Paulino. (R. 178, 181-83, 227).[2] The petitioner's father moved to the United States on March 10, 1968, settling in New York City. (R. 152). On February 10, 1973, Ms. Paulino surrendered legal custody of her son to Mr. Cartagena so that the petitioner could join his father in New York. (R. 94-95, 186-87). The petitioner was admitted to the United States as a lawful permanent resident on April 23, 1973. (R. 114, 130). He resided with his father from 1973 until 1984, when he moved in with his mother who had arrived in New York from Canada in 1979. (R. 98-100, 120). Mr. Cartagena-Paulino remained with his mother for another two or three years until his first marriage. (R. 99-100).
"R." refers to the Administrative Record filed as Exhibit A to the Letter of James A. O'Brien III dated June 9, 2000 ("O'Brien Letter").
On May 9, 1979, the petitioner's father became a naturalized citizen of the United States. (R. 198). The petitioner's mother became a United States citizen on May 16, 1996. (R. 202).
On October 5, 1989 Mr. Cartagena-Paulino was convicted in New York State Supreme Court, New York County, of criminal possession of a weapon in the third degree in violation of New York Penal Law § 265.02(4) and was sentenced to one year in prison. (R. 223-24). Almost three years later, on August 19, 1992, he was found guilty in the same court of kidnapping in the second degree in violation of New York Penal Law § 135.20 and received an indeterminate prison sentence of six to twelve years. (R. 138).
Based on his conviction for firearms possession, the INS commenced deportation proceedings against the petitioner on May 12, 1990 pursuant to Section 241(a)(14) of the INA.[3] After he failed to appear for a February 21, 1991 hearing, the Immigration Judge ("IJ"), Patricia A. Rohan, ordered Mr. Cartagena deported to the Dominican Republic in absentia. (R. 31). On February 5, 1998 the IJ opened the petitioner's immigration proceedings based upon his claim that he was entitled to derivative citizenship based on his father's status as a United States citizen. (R. 31, 190-92). The proceedings were transferred to the Immigration Court in Fishkill, New York, where the petitioner was incarcerated following his kidnapping conviction. (R. 31, 251).
Section 241(a)(14) of the INA requires, in part, the deportation of any alien who "at any time after admission is convicted under any law of . . . possessing . . . any weapon, part, or accessory which is a firearm or destructive device." ( 8 U.S.C. § 1227(a)(2)(C)).
Subsequently, on January 28, 1999, the INS charged that Mr. Cartagena-Paulino was also deportable under Section 241(a)(2)(iii) of the INA[4] as an alien convicted of an aggravated felony, kidnapping. (R. 228). At a hearing conducted before Immigration Judge Mitchell A. Levinsky, Mr. Cartagena-Paulino maintained that he could not be deported because he was a United States citizen. (R. 70-72, 77-78). On August 26, 1999, IJ Levinsky issued an opinion in which he held that the petitioner did not obtain derivative citizenship through his parents pursuant to Section 321(a)(3) of the INA, 8 U.S.C. § 1432(a)(3) (1999). (R. 31-33). The IJ further determined that either one of Mr. Cartagena-Paulino's convictions could serve as a basis for his deportation. (R. 33-34). In addition, the IJ ruled that, because the petitioner had committed an aggravated felony, he did not qualify for a waiver of inadmissability under Section 212(h) of the INA, 8 U.S.C. § 1182(h). (R. 33-34). The Board of Immigration Appeals ("BIA") upheld the IJ's decision on February 22, 2000. (R. 2-3).
Section 241(a)(2)(iii) states that "[a]ny alien who is convicted of an aggravated felony at any time after entry is deportable." 8 U.S.C. § 1251(a)(2)(A)(iii) (1994) (currently codified at 8 U.S.C. § 1227(a)(2)(A)(iii)).
Mr. Cartagena-Paulino filed the current petition for habeas corpus on March 29, 2000, claiming (1) that he derived United States citizenship from his father and is therefore ineligible for deportation, (2) that he was entitled to be considered for a waiver of deportation pursuant to Section 212(c) of the INA, and (3) he was also entitled to a waiver of deportation under Section 212(h) of the INA. On May 18, 2001 I issued a Memorandum and Order finding that I had jurisdiction to entertain the petitioner's challenges to his order of deportation pursuant to 28 U.S.C. § 2241. (5/18/01 Order at 5). Moreover, because I believed the petitioner's claims showed some likelihood of merit, I ordered that counsel be appointed for him. (5/18/01 Order at 7-8).[5]
No attorney from the pro bono panel volunteered to appear on behalf of the petitioner. After I appointed counsel, changes in the law unfavorable to aliens made it much less likely that Mr. Cartegena-Paulino's claims would have merit. Therefore, my order appointing counsel is rescinded.
On August 23, 2002, I issued a Memorandum and Order instructing the respondent to submit a letter brief indicating how three recently decided Supreme Court cases would impact Mr. Cartagena-Paulino's petition.[6]
Specifically, I instructed the respondent to analyze the impact of Calcano-Martinez v. Immigration and Naturalization Service, 533 U.S. 348 (2001), Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001), and Nguyen v. Immigration and Naturalization Service, 533 U.S. 53 (2001).
Discussion
A. Jurisdiction
The respondent argues that this Court does not have jurisdiction over Mr. Cartagena-Paulino's assertion that he derived United States citizenship from his father. Instead, the respondent claims, all citizenship and nationality claims must first be addressed in the Court of Appeals.
While district courts have jurisdiction to entertain a petitioner's challenges to final orders of deportation, "[t]he sole and exclusive avenue for review of a claim of nationality is by direct petition for review to the United States Court of Appeals for the Second Circuit." Alvarez-Garcia v. United States Immigration and Naturalization Service, 234 F. Supp.2d 283, 289 (S.D.N.Y. 2002); see Rivas v. Ashcroft, No. 01 Civ. 5871, 2002 WL 2005797, at *4 (S.D.N.Y. Aug. 29, 2002) ("[t]he immigration laws require that [the petitioner] present his nationality claim in the appropriate court of appeals, in this case, the Second Circuit"). With respect to an alien's citizenship and nationality claims, Section 242(b)(5) of the INA provides that "if the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim." 8 U.S.C. § 1252(b)(5)(A). If the court of appeals determines "that a genuine issue of material fact about the petitioner's nationality is presented, [it] shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing." 8 U.S.C. § 1252(b)(5)(B). Here, Mr. Cartagena-Paulino's petition is entitled "Petition for Writ of Habeas Corpus and Determination of Citizenship Under 28 U.S.C. § 1331 and 2241" ("Petition"). In his petition, he specifically asks the court to provide him with a "determination of [his] citizenship rights." (Petition at 1). It is the domain of the Second Circuit to adjudicate those rights in the first instance. See Drozd v. Immigration and Naturalization Service, 155 F.3d 81, 85 (2d Cir. 1998) (noting its jurisdiction over petitioner's derivative citizenship claim); Wedderburn v. Immigration and Naturalization Service, 215 F.3d 795 (7th Cir. 2000) (entertaining petitioner's derivative citizenship claim); Alvarez-Garcia, 234 F. Supp.2d at 289-90 ("District courts do not have jurisdiction over nationality claims."); Rodriguez v. Ashcroft, No. 02 Civ. 1188, 2003 WL 42018, at *4-5 (S.D.N.Y. Jan. 6, 2003); Hussein v. Ashcroft, No. 01 Civ. 1239, 2002 WL 31027604, at *1 (S.D.N.Y. Sept. 12, 2002); Rivas, 2002 WL 2005797, at *3-4 (transferring claim of derivative citizenship to the court of appeals); see also Nguyen, 533 U.S. at 57-58 (noting that the petitioner appealed his nationality claim directly from the BIA to the Court of Appeals for the Fifth Circuit).[7] Accordingly, I recommend that his nationality claim be transferred to the United States Court of Appeals for the Second Circuit.[8]
While I have found three instances where district courts have considered a petitioner's nationality claim instead of transferring that claim to the Court of Appeals, none of these cases discussed 8 U.S.C. § 1252(b)(5). See Lee v. Ashcroft, 216 F. Supp.2d 51 (E.D.N.Y. 2002); Shittu v. Elwood, 204 F. Supp.2d 876 (E.D.Pa. 2002); Barton v. Ashcroft, 171 F. Supp.2d 86 (D.Conn. 2001).
Even if this Could had jurisdiction to address the merits of the petitioner's derivative citizenship claim, that claim would fail. Construing Mr. Cartagena-Paulino's petition liberally, the petitioner challenges the applicable derivative citizenship statute, 8 U.S.C. § 1432(a), on the grounds that it denies "equal rights to U.S. fathers to petition for illegitimate children." (Petition at 1). 8 U.S.C. § 1432 provides:
A child born outside of the United States of alien parents . . . becomes a citizen of the United States upon fulfillment of the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes places while such child is under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.8 U.S.C. § 1432 (1999) (repealed by the Child Citizenship Act of 2000, Pub.L. 106-395, § 103(a), 114 Stat. 1632 (2000)).
The first two sub-sections of this statute, 321(a)(1) (2) are inapplicable to the petitioner since both of his parents failed to naturalize before his 18th birthday and because the record contains no information indicating that either of his parents are deceased. Likewise the first part of 321(a)(3) does not apply to the petitioner because his parents were neither married nor separated.
Presumably, Mr. Cartagena-Paulino challenges the second part of Section (a)(3), which permits a non-citizen child to acquire citizenship through the naturalization of his mother, if that child was born out of wedlock and the paternity of the child has not been established by legitimation. Specifically, the petitioner claims that this statute denies "equal rights to U.S. fathers to petition for illegitimate children." (Petition at 1). However, as the IJ noted, the petitioner's father legitimated him under Dominican law. (R. 32). Since the petitioner is not illegitimate, he has no standing to bring a claim that § 321(a)(3) discriminates against the fathers of illegitimate children.
In Wedderburn, the Seventh Circuit held that § 321(a)(3)'s gender distinction did not violate the equal protection clause as it pertained to the petitioner, who, like Mr. Cartagena-Paulino, was legitimatized under the law of his native country. The court concluded that once it has been determined that the petitioner is legitimate, "nothing depends on the sex of the parent (or parents) who naturalize or have custody." 215 F.3d at 802. Since Mr. Cartagena-Paulino is legitimate, the gender-based provision of 321(a)(3) does not apply to him. Therefore, as "a legitimated child . . . [the petitioner] has no sex-discrimination claim at all." Id.
It should be noted that in 2000, Congress passed the Child Citizenship Act of 2000 ("CCA") which repealed Section 321 of the INA, and conferred citizenship on any child under eighteen years of age upon the naturalization of that child's mother or father. CCA § 130(a) (codified at 8 U.S.C. § 1431). Whether the petitioner can reap the benefits of the CCA depends on whether it applies retroactively. Although the Second Circuit has not yet determined the CCA's retroactive effect, these provisions "do not appear to be retroactive." Cartagena-Paulino v. Reno, No. 00 Civ. 2371, 2001 WL 536934, at *3 n. 5 (S.D.N.Y. May 18, 2001); see United States v. Arbello, 288 F.3d 1262, 1263 (11th Cir. 2002); Nehme v. Immigration and Naturalization Service, 252 F.3d 415, 431 (5th Cir. 2001); Hughes v. Ashcroft, 255 F.3d 752, 760 (9th Cir. 2001); Baresic v. Ashcroft, No. 01 Civ. 7432, 2002 WL 84621, at *2 (N.D.Ill. Jan. 18, 2002). On March 3, 2003, the Second Circuit heard oral argument in Drakes v. Ashcroft, 01-4182, in which this issue is squarely presented.
B. Eligibility for Section 212(c) Waiver
The petitioner claims that he is eligible for a waiver of deportation pursuant to Section 212(c) of the INA. Prior to 1996 and the adoption of the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Section 212(c) of the INA authorized "any permanent resident alien with a lawful unrelinquished domicile of seven consecutive years to apply [to the Attorney General] for a discretionary waiver from deportation." St. Cyr, 533 U.S. at 295 (internal quotation marks and citations omitted); 8 U.S.C. § 1182 (1994).
In St. Cyr, the Supreme Court determined that Section 304(b) of the IIRIRA, which eliminated § 212(c) discretionary relief to petitioners convicted of aggravated felonies, did not apply retroactively to petitioners who pled guilty to an aggravated felony prior to the IIRIRA's effective enactment date. 533 U.S. at 314-26 (finding that Congress' failure to explicitly state that IIRIRA § 304(b) applied retroactively, precluded its retroactive application). In declining to apply § 304(b) retroactively, the Court noted that aliens who pled guilty to aggravated felonies prior to September 30, 1996 (the enactment date of the IIRIRA), would remain eligible to apply for § 212(c) relief as long as they "would have been eligible . . . at the time of their [conviction] under the law then in effect." Id. at 326.
Here, the petitioner asserts that he is eligible for § 212(c) relief because his separate convictions for weapons possession and kidnapping occurred several years before Congress eliminated § 212(c) relief for aggravated felons. However, since the petitioner was not eligible for § 212(c) relief at the time of his convictions, he may not be afforded that relief now.
The petitioner is not eligible for § 212(c) relief for two reasons. First, § 212(c) relief was not available to petitioners who, prior to the enactment of IIRIRA, were convicted of an offense involving weapons or firearms. See Gomez v. Commission of Immigration and Naturalization Services, No. 01 Civ. 4192, 2001 WL 637382, at *2 (S.D.N.Y. June 7, 2001) ("a petitioner ordered deported following a conviction on a weapons charge is not entitled to a discretionary waiver hearing under former § 212(c)") (citing Cato v. INS, 84 F.3d 597, 600-02 (2d Cir. 1996)). As noted above, Mr. Cartagena-Paulino was convicted of criminal possession of a weapon in the third degree. Since the IJ found him deportable, in part, on his weapons possession conviction (R. 33-34), he would not have been eligible for § 212(c) relief at the time of his conviction. Accordingly, he is not now eligible for that relief.
Second, at the time of Mr. Cartagena-Paulino's kidnapping conviction, Section 212(c) precluded "from discretionary relief anyone convicted of an aggravated felony who had served a term of imprisonment of at least five years." St. Cyr, 533 U.S. at 297; 8 U.S.C. § 1182(c) (1994). At the time of the petitioner's conviction, Section 101(a)(43) of the INA defined an aggravated felony, in part, as "a crime of violence (as defined in section 16 of Title 18 . . .) for which the term of imprisonment imposed . . . is at least five years." 8 U.S.C. § 1101(a)(43) (1992). A crime of violence under 18 U.S.C. § 16 continues to be defined as:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.18 U.S.C. § 16 (1994).
Courts have routinely recognized that kidnapping constitutes a crime of violence. See United States v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999) (referring to kidnapping as a crime of violence); United States v. Elder, 88 F.3d 127, 129 (2d Cir. 1996) (noting that kidnapping qualifies as a crime of violence under 18 U.S.C. § 924(c)(3)(B), which defines "crime of violence" similarly to 18 U.S.C. § 16); United States v. Patino, 962 F.2d 263, 267 (2d Cir. 1992). Since the petitioner's underlying kidnapping conviction is a crime of violence, his crime is deemed an aggravated felony under 8 U.S.C. § 1101(a)(43).
After his kidnapping conviction, Mr. Cartagena-Paulino was sentenced to a term of six to twelve years imprisonment. (R. 138). Because the petitioner was convicted of an aggravated felony and was sentenced to more than five years in prison, he would not have been eligible for § 212(c) relief at the time of his kidnapping conviction. Accordingly, he is not eligible for that relief now.
C. Eligibility for Section 212(h) Waiver
Finally, the petitioner seeks consideration for a waiver of deportation pursuant to INA § 212(h). INA § 212(h) permits the Attorney General to waive an order of deportation when that deportation would result in "extreme hardship" to a "United States citizen or lawfully resident spouse, parent, son or daughter. . . ." 8 U.S.C. § 1182(h)(1)(B). The IIRIRA amended § 212(h) so that a petitioner convicted of an aggravated felony would be ineligible to qualify for a § 212(h) waiver. IIRIRA § 348(a), 8 U.S.C. § 1182(h) ("[n]o waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if . . . since the date of such admission the alien has been convicted of an aggravated felony"). The respondent argues that this amendment should apply retroactively to preclude the petitioner from seeking § 212(h) discretionary relief.
Mr. Cartagena-Paulino was convicted of an aggravated felony prior to Congress' adoption of § 348(a). However, Congress specifically made § 348(a) "effective on the date of the [IIRIRA's] enactment," and required it to "apply in the case of any alien who is in exclusion or deportation proceedings as of such date unless a final administrative order in such proceedings has been entered as of such date." IIRIRA § 348(b), 8 U.S.C. § 1182(h). In fact, in St. Cyr, the Supreme Court noted that IIRIRA § 348(b) "indicate[d] [Congress'] intention to apply [§ 348(a) of the IIRIRA] retroactively." 533 U.S. at 319-20.
The IIRIRA was made effective on September 30, 1996. See Pub.L. No. 104-208 (Sept. 30, 1996). Although Mr. Cartagena-Paulino's deportation proceedings commenced in 1990, they continued through 2000. Since the petitioner was involved in these proceedings as of the effective enactment date of IIRIRA § 348(a), its provision precluding § 212(h) relief for aggravated felons applies to him. Thus, even if Mr. Cartagena-Paulino could establish that his deportation would result in "extreme hardship,"[9] he is prohibited from obtaining § 212(h) relief since, as noted above, he is a lawful permanent resident convicted of an aggravated felony. See United States v. Fernandez-Antonia, 278 F.3d 150, 160 (2d Cir. 2002); Beharry v. Reno, 183 F. Supp.2d 584, 593 (E.D.N.Y. 2002) (finding § 212(h) relief unavailable to lawful permanent residents convicted of aggravated felonies); see also Jankowski-Burczyk v. Immigration and Naturalization Service, 291 F.3d 172, 174-178 (2d Cir. 2002) (concluding that § 212(h)'s distinction between lawful permanent residents and non-lawful permanent residents did not constitute an equal protection violation).
During his deportation hearing, the petitioner sought to apply for § 212(h) relief based on "extreme hardship." However, the IJ determined that the petitioner was ineligible for a § 212(h) waiver and did not consider his application for such relief. (R. 35).
Conclusion
For the reasons set forth above, I recommend that the Mr. Cartagena-Paulino's claim of derivative citizenship be transferred to the Court of Appeals for the Second Circuit. I also recommend that his claims that he was improperly denied consideration for waivers of deportation pursuant to Sections 212(c) and 212(h) of the INA be dismissed. Pursuant to 28 U.S.C. § 636(b) and Rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Laura Taylor Swain, 40 Foley Square, Room 426, New York, New York 10007, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Respectfully submitted,
/S/ JAMES C. FRANCIS IV, United States Magistrate Judge
Dated: New York, New York March 5, 2003