Opinion
99 CV 3613 (JBW)
October 3, 2001
Janet Sabel, Esq., Maria E. Navarro, Esq., Bryan Lonegan, Esq., Ariadna Renteria Torres, Esq., The Legal Aid Society, New York, N.Y., For Petitioner Dave Anthony Drax.
Allan Vinegrad, United States Attorney, Brooklyn, New York, Scott Dunn, Esq., For Respondents Janet Reno et al.
MEMORANDUM AND JUDGMENT
I. Introduction
An immigrant ordered deported as an aggravated felon seeks a writ of habeas corpus. He has two convictions, one for attempted possession of a firearm and one for a drug sale, which would bar relief. Counterintuitively, he is entitled to the writ because of a rule of the Board of Immigration Appeals (BIA) that neutralizes this bar to provide a compassionate hearing that may permit him to remain in the United States. See Matter of Gabryelsky, 20 I. N. Dec. 750 (B.I.A. 1993).
At the time petitioner pled guilty the Immigration and Naturalization Act (INA) provided for discretionary relief for drug convictions through former section 212(c), for which petitioner would now be eligible if that were his only conviction; section 212(c) relief, however is barred if the applicant has a firearms conviction. The INA also provides for discretionary waiver of firearms charges under section 245, covering aliens who have a pending visa application by a citizen-relative on behalf of the non-citizen; section 245 is not available for drug offenders. That is, a petitioner with either one of these convictions alone would be eligible for relief, but the combination would seem to bar a waiver of either.
This catch-22 led the Board of Immigration Appeals in Gabryelsky to permit simultaneous applications for relief. Gabryelsky creates the legal fiction that the section 212(c) hearing and the section 245 hearing happen at exactly the same instant. Because of this simultaneous determination, the immigration judge can consider that the section 212(c) hearing is not barred by the weapons conviction, since the judge is at that moment also deciding whether to "waive" it. And he can consider the section 245 hearing as not barred by the drug conviction, since he is also at that moment determining whether to "waive" it. If, and only if, the judge decides to "waive" both charges, will the petitioner avoid deportation. Gabryelsky provides a unique remedy which requires the petitioner to convince the immigration judge that he is worthy of both a section 212(c) waiver of the drug charge and a section 245 waiver of the firearms charge.
The case presents two questions:
(1) May petitioner prosecute this claim in District Court, despite his failure to specifically request Gabryelsky relief at the agency level; and
(2) Does the petitioner qualify for a hearing under both 212(c) and 245?
The answer to both questions is "yes."
II. Facts
Dave Anthony Drax entered the United States twenty-five years ago at age fifteen. He was granted the status of a lawful permanent resident seventeen years ago in 1984. Between 1981 and 1994, Mr. Drax was married to a permanent resident, who died in 1994.
Mr. Drax pled guilty in a New York state court to attempted criminal possession of a firearm in the second degree in May 1993. He pled guilty to sale of a controlled substance in the fifth degree in April 1996. Later in April of 1996, Mr. Drax was simultaneously sentenced to one-to-three years for the weapons charge and two-to-four years for the drug charge, sentences to run concurrently.
While Mr. Drax was still incarcerated, the Immigration and Naturalization Service (I.N.S.) commenced deportation proceedings by filing an Order to Show Cause in January of 1997. In July of 1997, Mr. Drax admitted his convictions in a hearing before an immigration judge. He was ordered deported. Upon his release from prison in June of 1998, Mr. Drax was taken into I.N.S. custody.
Mr. Drax was not represented by counsel at the hearing, though he had been granted two adjournments, totaling over four months, to find an attorney. At the immigration hearing, Mr. Drax asked if he was "qualified for any type of waiver."
"That's what we're going into the pleadings for, " replied the administrative Judge. After verifying Mr. Drax's convictions, the Judge replied that "there is no relief available to you. "You are not eligible under the laws for any kind of relief" declared the Judge. He added, "sale of drugs in this country results in you being deported if all other things can be proven. . . . the Judge's discretion or his decision making powers is taken away from him."
The Judge acknowledged proof that Mr. Drax's father and siblings were naturalized citizens. Thus, the father could have applied for a visa for his son, making section 245 applicable, but he had apparently not done so. The Judge did not notify Mr. Drax of this alternative.
In reference to sections 212(c) and 245, the Judge's explanation of ineligibility was: "You have an aggravated felony drug sale. You are not eligible for a 212(c) because it's been taken away. You have an aggravated felony drug sale. You're not eligible for an adjustment of status. You were never eligible for an adjustment of status because adjustment will not waive a drug offense."
Not surprisingly, given his pro se appearance, Mr. Drax did not specifically request an adjustment of status under section 245, nor did he mention the Gabryelsky method of obtaining a concurrent hearing under both sections 245 and 212(c). He appealed in time from the order of deportation in July 1997.
While the appeal was pending, Mr. Drax, as the son of a naturalized citizen, filed an 1-130 form as a prerequisite for applying for adjustment of status. This application was received by the I.N.S. and was noted received in October 1998.
On May 28, 1999 the Board of Immigration Appeals dismissed Mr. Drax's appeal. In Re Drax, B.I.A. Decision, File # A38736811. In a one-page opinion, the court declined to hear oral argument, and held that Mr. Drax's request for 212(c) relief was barred by the Antiterrorism and Effective Death Penalty Act (AEDPA). Id. The court declined to address any constitutional arguments. Id.
On June 24, 1999, Mr. Drax filed a petition for a writ of habeas corpus in this court seeking review of the deportation order against him.
In April 2000, Mr. Drax married a United States citizen. On May 15, 2000, the I.N.S. received a visa application for Mr. Drax as an immediate relative, from his new wife. This application was then substituted for Mr. Drax's previously filed I-130 which had been based on the father's citizenship. The priority date of this new application was May 11, 2000; notice of approval of this application was sent to Mr. Drax on March 27, 2001. See Petitioner's Letter, 2001, Exhibit C.
III. Law
A. Exclusion and Deportation
Prior to 1996, the INA provided for two separate types of proceeding to remove aliens from the country, exclusion and deportation. One difference was in the types of subject aliens. Those physically present in the United States who committed certain acts were subject to deportation. In contrast, those at the country's border were subject to exclusion. Exclusion also applied to some aliens who were physically present in the United States but who were treated legally as if they were at the border — for example, if they had been "paroled" into the country rather than "admitted:" See Henderson v. Reno, 157 F.3d 106, 111 n. 5 (2d Cir. 1998) (explaining distinction between exclusion and deportation).
In 1996, exclusion and deportation were consolidated into a single process called "removal." Id. Exclusion had been governed by section 212 and deportation by section 241. Despite the consolidation, sections 212 and 241 remain separate even today and each has its own particular list of grounds for removal (these being the former lists of the separate grounds for exclusion or deportation).
Section 212 covers excludable aliens. The pre-1996 version of section 212(a) reads: "[e]xcept as otherwise provided for in this Act, the following describes classes of excludable aliens who are ineligible to receive visas and shall be excluded from admission to the United States." Section 212(a) then lists several categories of excludable aliens. Section 212(a)(2)(A)(i) is the provision excluding drug offenders, and section 212(a)(2)(C) excludes drug traffickers.
Section 241 governs deportation of aliens already present. Section 241(a)(2)(A) provides in relevant part that: "Any alien who is convicted of an aggravated felony at any time after entry is deportable." "Aggravated felony" is a term defined in section 101(a)(43), which includes drug crimes. Section 241(a)(2)(B)(i) also allows deportation of aliens convicted of drug crimes.
Most importantly, section 241(a)(2)(C) makes deportable "any alien who at any time after entry is convicted under any law of purchasing, selling, offering for sale, using, owning, possessing, or carrying, or attempting or conspiring to purchase, sell, offer for sale, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device." This provision allowing for deportation based on firearms offenses was amended in 1994 to include "attempts" to violate firearms law. (Recall that petitioner pleaded guilty to the attempted possession of a firearm, in May of 1993.) Prior to 1994, the language "or attempting to" possess a firearm was not part of the statute. The BIA held that this change affected convictions for attempts even if the plea was taken prior to the amendment. See In Re Clint Saint John, 211. N. Dec. 593 (B.I.A. 1996).
Although Saint John was not mentioned in the recent Supreme Court decision St. Cyr, 121 S.Ct. 2271(2001), Saint John is now of dubious authority. St Cyr presents a strong general position against retroactive changes in substantive rights. See St. Cyr, 121 S.Ct. at 2290-91 (a statute is retroactive where it "takes away or impairs vested rights").
B. Discretionary Relief under section 212(c)
Between 1952 and 1996, the INA contained section 212(c), a provision granting the Attorney General broad discretion to admit otherwise excludable aliens. It 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.
Section 212(c) on its face applies only to aliens who have temporarily traveled abroad, and are returning to an unrelinquished domicile of seven consecutive years. Nonetheless, the court of appeals for the Second Circuit held that a section 212(c) waiver was available regardless of whether the alien had departed from the country subsequent to the acts which rendered him deportable, Francis v. I.N.S., 532 F.2d 268, 273 (2d Cir. 1976), and the BIA then adopted this approach in applying section 212(c) in all cases nationwide. See Matter of Silva, 16 I. N. Dec. 26 (BIA 1976). Cf. St. Cyr, 121 S.Ct. at 2276 (recounting this history and endorsing the Francis interpretation).
Some 10,000 applicants — over half of immigrants applying for a section 212(c) waiver — were granted this relief between 1989 and 1995. See St Cyr., 121 S.Ct. at 2277 n. 5. The factors considered in deciding whether or not to grant relief in a section 212(c) hearing are numerous; they are listed in Lovell v. I.N.S., 52 F.3d 458 (2d Cir. 1995):
When considering a § 212(c) application, an immigration judge must balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of 212(c) relief appears in the best interests of this country. . Adverse factors include: the nature and circumstances of the exclusion ground at issue, the presence of additional immigration law violations, the existence of a criminal record and its nature, recency and seriousness, and the presence of other evidence indicative of an alien's bad character or undesirability as a permanent resident. . Favorable considerations include: family ties within this country, residence of long duration within this country, evidence of hardship to the alien and alien's family upon deportation, Armed Forces service, employment history, community service, property or business ties, evidence attesting to good character, and, in the case of one convicted of criminal conduct, evidence of genuine rehabilitation. Lovell at 461.
Post-Francis, section 212(c) relief has also been available to both deportable and excludable aliens. Aliens may not use section 212(c) to waive all section 241 offenses, however, because "there are some acts or offenses that are grounds for deportation under section 241 which are not grounds for exclusion under section 212, and vice versa." Cato v. I.N.S., 84 F.3d 597, 599 (2d Cir. 1996).
Section 212(c) may be used to waive offenses which create section 241 deportation grounds only if these are mirrored in the list of exclusion grounds under section 212(a). For example, section 212(c) may be used to waive a drug offense giving rise to section 241 deportability, since this offense is also listed as a ground for exclusion in section 212(a). Deportable offenses not included in section 212(a), including firearms charges, may not be waived by application of section 212(c). Cato, 84 F.3d at 600 (finding that section 241 firearms offenses are not waivable under section 212(c) since they are not among the enumerated offenses within section 212(a)). The general rule is subject to one court-created exception: Aliens deportable under parts of section 241 which "could have no conceivable analogue in the exclusion setting" are also eligible for section 212(c) relief. See Bedoya-Valencia v. I.N.S., 6 F.3d 891 (2d Cir. 1993).
This confusing interplay of laws was most clearly explained in Cato which found aliens convicted of a firearms violation ineligible for section 212(c) relief. Cato held that, where an alien deportable under section 241 applies for section 212(c) relief, he can be placed in one of three categories. First are applicants deportable for section 241 offenses which are identical to some ground for exclusion listed in section 212(a). Aliens in this group are eligible for section 212(c) relief. Second are applicants whose section 241 grounds for deportation have no conceivable analogue in the exclusion context these aliens are also eligible for section 212(c) relief.
The third group includes applicants whose grounds for deportation could have been included in the list of excludable offenses in section 212(a), but were not. This includes aliens convicted of firearms offenses, which are a listed ground for deportation under section 241, but are not an enumerated ground for exclusion in section 212(a). Section 212(c) relief is not available for this class. See Cato, 84 F.3d at 600. The reasoning of the Cato court is that Congress chose to make these aliens ineligible for section 212(c) relief. Id. Arguably, this conclusion is strained since Congress is unlikely to have anticipated Francis and Bedoya which extended section 212(c) to two of the three possible categories of deportable aliens. In sum, section 212(c) is extended to nearly all deportable aliens, leaving out only a small subgroup whose firearms offenses might have been included in section 212(a)'s list of exclusion offenses, but were not. Id.
Prior to April 1996, section 212(c) waivers were allowed for all aliens excludable under section 212 (and those deportable under relevant sections of section 241 as established in Francis and Cato), except for those who had committed a crime then characterized as an "aggravated felony" and which carried a sentence of five years. See Imm. Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978, 5052(1990), Section 511(a), as amended by the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub.L. No. 102-232, 105 Stat. 1733, 1751 (1991), Section 306(a)(10). This policy changed dramatically when section 212(c) was amended in 1996 by section 440(d) of AEDPA. See Mojica v. Reno, 970 F. Supp. 130, 137 (E.D.N Y 1997) (history of AEDPA and section 212(c)). After AEDPA, a large number of aliens became newly ineligible for section 212(c) relief, including those convicted of an aggravated felony, a drug offense, certain weapons or national security violations, or-multiple convictions involving crimes of moral turpitude. Id. This modified version of section 212(c) was short-lived; section 212(c) was eliminated entirely by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which was passed later in 1996. See id. at 136-37; St. Cyr, 121 S.Ct. at 2276-78 (providing history of AEDPA and IIRIRA).
AEDPA's modification of section 212(c) was designed to apply retroactively to convictions. See 110 Stat. 1277; St. Cyr, 121 S.Ct. at 2277. The Supreme Court found this retroactive application invalid inSt. Cyr, It held that, "section 212(c) relief is available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for section 212(c) relief at the time of their plea under the law then in effect." St. Cyr, 121 S.Ct. at 2293; see also Mojica, 970 F. Supp. at 173-77. The Court's reasoned that "Plea agreements involve a quid pro quo between a criminal defendant and the government. . . . Relying upon settled practice, the advice of counsel, and perhaps even assurances in open court that the entry of the plea would not foreclose section 212(c) relief, a great number of [similarly situated defendants] chose to plead guilty." St. Cyr, 121 S.Ct. at 2291-92.
C. Adjustment of Status
The INA provides that aliens who meet certain requirements may be issued immigrant visas. For immigrants living abroad, visas are issued at consulates. For admissible aliens already residing in the United States, the procedure is called adjustment of status. Adjustment of status is governed by INA section 245. Subsection 245(a) sets out the general statutory scheme:
The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, and (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. (Emphasis added.)
This subsection was not modified between 1976 and 2000. Prior to 1976, the requirement was that" . . . (3) an immigrant visa is immediately available to him at the time his application is approved." (Emphasis added.) The 1976 change made availability of the visa at the time of filing, rather than approval, a critical date.
Section 245 adjustment of status was designed to be used by nommmigrants applying for adjustment to permanent resident status; the title of the section is "Adjustment of status of nommmigrant to that of person admitted for permanent residence." Nevertheless, the provision has been interpreted to apply to aliens who are already permanent residents, allowing them to "adjust" their status to that of an alien without the firearms or other offense which would otherwise render them deportable.See Matter of Rainford, 201. N. Dec. 596 (B.I.A. 1992). Rainford held that "a [firearms] conviction does not preclude a finding of admissibility in connection with an application for adjustment of status under Section 245(a) of the Act, and it may not serve as a ground of deportability if the respondent's status is adjusted to that of a lawful permanent resident." Id. at 598. Thus, even an alien convicted of a weapons offense is "admissible to the United States and therefore eligible to apply for adjustment of status." Id. at 602. Rainford also laid out conditions for this remedy, including the exercise of discretion for reasons of compassion, and the availability of a current visa number for the appropriate classification (in that case first-preference). It reads:
We note that to be granted adjustment of status, the visa petition on his behalf will have to be approved by the Service. The respondent will also have to show the immigration judge that he merits adjustment in the exercise of discretion. Finally, visa numbers for first-preference classification will still need to be current. Id. at 602.Rainford has been followed by the BIA. See e.g., In Re Rosas-Ramirez, 1999 WL 187054; In Re Ayala-Arevalo, 1998 WL 833810; In re Collado-Munoz, 211. N. Dec. 1061 (1998); In re Gonzalez-Camarillo, 211. N. Dec. 937; Gabryelsky, supra; Matter of K-L-, 20 I. N. Dec. 654(1993). It has been approved by the courts. See Snajder v. I.N.S., 29 F.3d 1203 (7th Cir. 1994); Powell v. Jennifer, 937 F. Supp. 1245 (E.D.Mich. 1996); Calderon v. Reno, 39 F. Supp.2d 943 (N.D.Ill. 1998). The court of appeals for the Second Circuit has applied the same rule since a case predating Rainford. See Tibke v. I.N.S., 335 F.2d 42 (2d Cir. 1964); see also Powell, 937 F. Supp. at 1248 n. 3 (noting this application of section 245 under Tibke).
Section 245 adjustment of status may not be used if the applicant has a drug conviction. Aliens with drug convictions are not considered "admissible" for section 245 purposes. For most non-drug offenders, only crimes with a sentence imposed of more than five years will force exclusion. There are three categories of aliens ineligible for Rainford relief. These excludable aliens are (1) aliens with sentences of over 5 years, (2) aliens with drug convictions, and (3) certain other miscellaneous groups. See generally St. Cyr at 2276 (laying out categories of aliens excludable under section 212(a)).
One additional requirement for Rainford application is section 245(e), the bona fide marriage provision. This subsection contains a general ban on adjustment of status if the application is based on a marriage entered into while in deportation proceedings. section 245(e)(1) states that "[e]xcept as provided in paragraph 3, an alien who is seeking to receive an immigrant visa on the basis of a marriage which was entered into [during deportation hearings or appeals] may not have the alien's status adjusted" under section 245(a). The exception is found in section 245(e)(3) which waives the ban if the alien can establish by clear and convincing evidence that "the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place and the marriage was not entered into for the purpose of procuring the entry of the alien as an immigrant. . . ."
In short, section 212(c) may be used to waive exclusion for the offenses listed in section 212(a), including drug offenses; however, section 212(c) relief is barred where the applicant has a firearms conviction. Section 245 may be used to adjust the status of a lawful permanent resident, removing certain offenses from their record including firearms offenses; however, section 245 may not be used where the applicant has a record of drug offenses.
D. The Gabryelsky System
Gabryelsky allows the petitioner to consolidate both the 212(c) and 245 discretionary hearings into a single hearing. As already noted, this creates the assumption that the two hearings happen at the same moment. Because of this simultaneous determination, the immigration judge can consider that the section 212(c) hearing as not barred by the weapons conviction, since the judge is at that exact moment deciding also whether to waive the weapons conviction. And he can consider the section 245 hearing as not barred by the drug conviction, since he is also determining whether to waive the drug charge. Only if the judge decides to waive both charges is the petitioner not deported.
The Gabryelsky decision was based largely on the then-current Code of Federal Regulations. Section 245.1(f) of title 8 in the 1995 Code of Federal Regulations (the latest version prior to 1996 AEDPA changes) laid out the procedure for "Concurrent applications to Overcome Exclusionary Grounds." This section provided in relevant part that "[a]ny applicant for adjustment under this part [section 245] may also apply for the benefits of section 212(c) of the Act."
The Gabryelsky method has been adopted by the BIA, and endorsed by the courts. See Snajder v. I.N.S., 29 F.3d 1203 (7th Cir. 1994); Nunez v. I.N.S., 50 F.3d 1 (1st Cir. 1995) (table, text in WESTLAW 94-1906);Calderon v. Reno, 39 F. Supp.2d 943 (N.D. Ill. 1998); Rivera-Saavedra v. Demore, 2001 WL 1006819 (N.D.Cal. 2001); Ramos-Flores v. I.N.S., 1999 WL 1788910 (D.Mass. 1999); Cinquemani v. Ashcroft, 2001 WL 939664 (E.D.N.Y. 2001), see also In Re Rodarte-Espinoza, 211. N. Dec. 150 (B.I.A. 1995) (applying Gabryelsky). But cf. Powell v. Jennifer, 937 F. Supp. 1245 (E.D.Mich. 1996) (rejecting Gabryelsky after a thorough analysis).
E. Exhaustion of Administrative Remedies
Courts are barred from hearing immigration claims not raised at the administrative level. See Correa v. Thornburgh, 901 F.2d 1166, 1171 (2d Cir. 1990) ("This claim was never raised by Correa either before the Immigration Judge or on appeal to the BIA. The District Court in this habeas corpus proceeding apparently considered the issue de novo, thereby according Correa a benefit to which she was not entitled. . . . This claim should have been dismissed for failure to exhaust administrative remedies."). See also Cinquemani, 2001 WL 939664 at n. 4 (same in context of a Gabrvelsky claim).
The INA itself requires exhaustion. It states:
Section 106a(c). Exhaustion of administrative remedies or Departure from the United States; Disclosure of Prior Judicial Proceedings. An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order. Every petition for review or for habeas corpus shall state whether the validity of the order has been upheld in any prior judicial proceeding, and, if so, the nature and date thereof, and the court in which such proceeding took place. No petition for review or for habeas corpus shall be entertained if the validity of the order has been previously determined in any civil or criminal proceeding, unless the petition presents grounds which the court finds could not have been presented in such prior proceeding, or the court finds that the remedy provided by such prior proceeding was inadequate or ineffective to test the validity of the order.
Relief may be available for some applicants who do not fully exhaust administrative remedies if they can meet a high equitable burden. See Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001).Carmona held that the correct standard of review for a prisoner who "seeks relief . . . but who has procedurally defaulted on his federal administrative remedies [is] cause and prejudice." Id. This escape from the exhaustion requirement was developed in the context of federal habeas review of state court proceedings. Id. at 632. "Cause" is demonstrated by "a showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that `some interference by state officials' made compliance impracticable, . . . [or that] the procedural default is the result of ineffective assistance of counsel." Murray v. Carrier, 477 U.S. 478, 488(1986).
The court of appeals for this circuit has an established tradition of leniency towards pro se petitioners, especially where summary judgment is sought by the government. See Williams v. Kullman, 772 F.2d 1048 (2d Cir. 1983) ("[D]ue to the pro se petitioner's general lack of expertise, courts should review habeas petitions with a lenient eye, allowing borderline cases to proceed. . . . pro se complaints must be liberally constructed).
F. Immediately Available Visa
The Gabryelsky scheme requires that the applicant meet the timing requirements of section 245 laid out earlier, that "an immigrant visa is immediately available to [the alien] at the time his application is filed." An appropriate construction is that the visa must be available only when the application is filed. The cases suggest that the filing of a petition is sufficient. See e.g., Rainford at 602 (allowing relief where petitioner filed); Cinquemani, 2001 WL 939664 at *4 (stating thatGabryelsky petition would fail because petitioner's wife had not "filed an Immediate Relative Petition"). But cf. Burger v. McElroy, 1999 WL 787661 at *1 (S.D.N.Y.) (stating that "approval of the petition makes an immigrant visa immediately available"). Statutory language also supports this position. As already noted, the original text of section 245(a) required an "approved" petition, a requirement which was changed specifically, when the statute was amended in 1976, to require only a "filed" petition. This conclusion also comports with section 245.1(g) of title 8 of the then-current Code of Federal Regulations, which read in relevant part, "[a]n alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed." (emphasis added).
In January 1996, visa applications for first-preference family members (unmarried sons or daughters of United States citizens) were "current, " meaning that there was no wait list and the visa would presumably be issued as soon as it was processed by the agency. The wait list for third-preference family members (married sons or daughters of U.S. citizens) was three years, dating back to May 1993. In other words, visa applications for third-preference family members dating later than May 1993 were not being considered in January 1996 because of backlog. See Visa Bulletin No. 58 Vol. 7, Jan 1, 1996 (U.S. Dept. of State), available online at the web address http://dosfan.lib.uic.edu/ERC/visa_bulletin/9601bulletin.html.
Petitioner can be treated as a category 1 applicant. This determination is critical because category I applicants ("unmarried son or daughter of United States citizen") were "current, " while category 3 applicants ("married sons or daughters") were subject to a two year wait list. Mr. Drax was widowed at the time of the filing of an I-130. The Code of Federal Regulations is clear that once-married applicants whose marriage is legally terminated qualify as unmarried. Cf. C.F.R. § 204.2(h)(1995) (automatic conversion from category 3 to category 1 for applicants whose marriage is legally terminated).
Death legally terminates a marriage. Thus, Mr. Drax should be treated as a category 1 applicant in 1998.
IV. Application of Law to Facts
A. Retroactivity
At the time of Mr. Drax's 1993 conviction for attempted possession of a weapon, attempted possession of a weapon was not a crime which precluded adjustment of status under section 245. Originally, section 245 was limited to actual possession or use of a firearm. It was not until 1994 that a "technical amendment" to the statute extended the ban to include persons convicted of attempted firearms offenses. The BIA subsequently held that this change in law would apply retroactively to aliens whose convictions predated the amendment. Saint John at *3. Saint John cannot be followed following the St. Cyr decision. St. Cyr negates such retroactive changes limiting substantive rights. While the BIA stated that the 1994 amendments were technical in nature, Saint John at *3, the amendment should be viewed as substantive for retroactivity purposes. This independent ground certainly seems to favor the petitioner. But it is not necessary to resolve this constitutional issue because petitioner succeeds on other grounds. See St. Cyr. 121 S.Ct. at 2279 (courts do not decide constitutional issues where unnecessary).
B. Failure to Exhaust Administrative Remedies
Exhaustion doctrine does not bar a remedy for petitioner. At his hearing, the pro se petitioner asked the judge if he was "qualified for any type of waiver." The administrative judge responded with a mis-statement of law. He held the petitioner ineligible for relief despite the prima facie applicability of Gabryelsky, and despite the fact that Gabryelsky had been BIA policy for three years. When a judge chooses to advise a pro se petitioner on a critical issue, the advice ought to be correct. Since aliens are so often at the mercy of government, they "should not be penalized for the government's misfeasance." Paunescu v. I.N.S., 76 F. Supp.2d 896, 902 (N.D.Ill. 1999).
The judge's erroneous statement of law foreclosed further, more specific inquiries from the petitioner. Under these circumstances, and keeping in mind the stricture to "review habeas petitions with a lenient eye, " the reasonable conclusion is that the petitioner in effect raised his Gabryelsky claim by asking for "any type of waiver." Petitioner's request for "any kind" of relief, because of its premature foreclosure by judicial error, should be deemed a request for Gabryelsky relief. Therefore, the petitioner's claim is not barred for failure to exhaust administrative remedies.
Because the petitioner did not fail to exhaust his remedies, there is no need to reach a conclusion on the issue of whether the "cause and prejudice" standard, for review of unexhausted claims, was met.
C. Immediate Availability of Relief
Petitioner is entitled to use section 212(c) since his drug conviction predates the changes to that section. St. Cyr, 121 S.Ct. at 2293. SinceGabryelsky was established BIA practice at the time of his immigration hearing, petitioner is entitled to Gabryelsky relief if he qualifies for both sections 212(c) and 245.
A hard question is what timing requirements petitioner must meet in order to satisfy Gabryelsky. To be eligible for section 245 relief, a visa "must be immediately available" to the alien. This issue can be split into two components: (1) What does "immediately available" mean, and (2) Exactly when, within the deportation process, must this requirement be met?
There are two possible answers to the first question. The statute might require filing of an I-130, or it might require approval. There are also at least three "break points" at which this requirement might conceivably be tested. First, the law could require that the I-130 application be "available" (however that term is defined) before or at the same time as the Immigration judge hearing. Second, the law could require that the visa be available at the time of the BIA appeal. Third, the law could require only that the visa be available at the present time.
To answer the first question, "filing date" rather than "approval date" is the correct date to examine. The statutory language, Code of Federal Regulations, and BIA cases, as already indicated, are convincing evidence that the proper standard ought to be the filing date, not the approval date. See Part III-F, supra. There are some potential concerns about using the filing date. There are a limited number of visas available each year, and it is conceivable that the allotted number will have been exhausted at a later date. But the possibility of this occurrence is insufficient reason to impose this harsher choice.
The second question is at what stage the visa application must be filed. Three possibilities exist: Before the immigration hearing, before the BIA appeal, or at any time up to the present date. of the three possibilities, the "present date" is the most favorable to the petitioner; this choice, however, is the most legally dubious. Five years have passed since the immigration hearing. During this time, Mr. Drax has submitted an application, changed that application, and then had the modified application approved. His status has changed drastically. It seems incongruent to apply current facts to a 245(a) petition which the petitioner should have been able to file in 1996. This incongruity is highlighted by the fact that Mr. Drax is relying on pre-1996 law, section 212(c), for his relief.
There are two remaining possibilities. The deadline could be set before the immigration hearing or before the BIA hearing. This distinction is crucial in this case because Mr. Drax filed his I-130 after his immigration court hearing, but before his BIA appeal was decided.
In choosing between these categories, the cases are not particularly helpful. Gabryelsky itself is unclear on this issue. That BIA court noted that Mr. Gabryelsky had an I-130 on file as of the time of his appeal.Gabryelsky at 752. It is not clear whether the application was filed before or after his immigration hearing. Rainford is equally unclear. "The respondent sought to apply for adjustment of status. . . . Here, the respondent has made an adjustment of status application, " noted the BIA court. Rainford at 599. Rainford held that the immigration judge improperly dismissed the application for a different reason; this might imply that Mr. Rainford had his I-130 filed before his immigration hearing.
The argument in favor of a deadline at the Immigration judge hearing is simple: If the immigration judge had ruled correctly on the Gabryelsky issue, he would have then asked Mr. Drax if he had filed his I-130. Mr. Drax would have replied that he had not done so, and would have been found ineligible for section 245(a) relief and ordered deported.
This reasoning is not without problems. Presumably, had the immigration judge told Mr. Drax of the requirement that an I-130 be filed, Mr. Drax might have filled out the application then or asked for a short continuance to do so. Given that Mr. Drax was not able to pursue this route because of the administrative judge's misstatement of law, even remote possibilities which were foreclosed to him should be considered as serious alternatives. An appeal to the BIA could have resulted in remand for a new immigration hearing, where perhaps the petitioner would have been able to request section 245 relief — if in the interim he had filed an I-130. In that case, the proper deadline would become "at any time before the second immigration hearing." The BIA appeal date would necessarily precede any second immigration hearing; this lends support to the conclusion that the correct deadline date in this case should be set at the date of the BIA appeal, provided the appeal was not unreasonably delayed by the appellant. These considerations — the potential for same-day filing, and the potential for appeal and remand — are sufficient under the facts of the instant case to support the conclusion that the deadline should not be set at the date of the immigration hearing. The appropriate deadline in determining whether the visa was filed in the present case is the date of the BIA hearing.
Accordingly for petitioner's habeas petition: (1) "immediately available" means filing, not approval, and (2) the proper deadline for this filing is the date of the BIA decision. Under this combination, Mr. Drax's is entitled to a writ requiring a new immigration hearing. Despite the fact that the relief in question is discretionary and depends on a determination at the administrative level, petitioner has a right to a ruling on eligibility for a hearing. St. Cyr. 121 S.Ct. at 2283.
V. Conclusion
Petitioner still faces numerous hurdles if he wishes to stay in this country. He must convince an immigration judge that he is qualified for a discretionary waiver under both section 212(c) and section 245(a). This will involve proof by clear and convincing evidence that his present marriage, undertaken during deportation proceedings, was bona fide under section 245(e)(3), so that his current wife's application for a visa could properly be substituted for the earlier application submitted by his father.
The writ is granted. Petitioner's case is remanded for consideration by the I.N.S. in conformity with this opinion.
SO ORDERED