Opinion
Case No. 4:03-CV-15
February 19, 2004
Jose A. Sandoval, Sandoval Gardiner, P.C., Grand Rapids, MI, for Petitioner Eduardo Raul Generi
Richard G. Kessler, Law Office of Richard Kessler, PC, Grand Rapids, MI, for Respondent Eduardo Raul Generi
James Santelle, Grand Rapids, MI, for John Ashcroft, for Respondent Carol Jenifer
REPORT AND RECOMMENDATION
This matter is before the Court on Generi's petition for writ of habeas corpus. In accordance with 28 U.S.C. § 636(b), authorizing United States Magistrate Judges to submit proposed findings of fact and recommendations for disposition of prisoner petitions, I recommend that Generi's petition be granted.
I. Background
Petitioner, a citizen of Argentina, entered the United States in November 1969, at the age of 15. Petitioner later married and he presently resides in Michigan with his wife and children. On October 16, 1974, Petitioner pled guilty to attempted breaking and entering an occupied dwelling with the intent to commit larceny. A fine was imposed and Petitioner was further sentenced to restitution and probation. In August 2001, Petitioner pled guilty to one count of use of cocaine and one count of possession of marijuana, both misdemeanor offenses. Petitioner was again fined and placed on probation. Petitioner's 2001 convictions, however, subjected him to deportation pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), which provides that
Any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . is deportable.
Removal proceedings were initiated against Petitioner in June 2001, and pursuant to federal law he was taken into custody. See 8 U.S.C. § 1226(c)(1)(B) ("The Attorney General shall take into custody any alien who . . . is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title"). An immigration judge subsequently concluded that Petitioner was subject to deportation, a determination later affirmed by the Board of Immigration Appeals (BIA). The determination that Petitioner's 2001 convictions render him deportable is not presently at issue. Instead, the issue presented by Generi's petition relates to his qualification to petition the Attorney General for a waiver of his deportation order.
On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). See Henry v. Ashcroft, 175 F. Supp.2d 688, 690 (S.D.N.Y. 2001). This Act modified various aspects of federal immigration law, including the eligibility requirements for seeking discretionary relief from deportation, the aspect of immigration law presently at issue.
Prior to the enactment of the IIRIRA, certain lawful permanent residents otherwise determined to be deportable were entitled to apply to the Attorney General for a waiver of deportation. To be eligible for a waiver, however, the applicant had to have lawfully resided in the United States for seven consecutive years. Under the IIRIRA, an alien subject to deportation is still permitted to apply for a waiver of deportation, but the Act articulates different (and more restrictive) requirements. Id. The waiver applicant still must have resided in the United States continuously for seven years. 8 U.S.C. § 1229b(a). However, the IIRIRA also added a "clock-stopping" provision that had not been part of prior law. This provision provides that:
For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end . . . when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.8 U.S.C. § 1229b(d)(1).
Section 1182(a)(2) provides that "any alien convicted of . . . a crime involving moral turpitude . . . or an attempt or conspiracy to commit such a crime . . . is inadmissible." 8 U.S.C. § 1182(a)(2)(A)(i). The immigration judge concluded that Petitioner's 1974 offense of attempted breaking and entering an occupied building with the intent to commit larceny constituted a crime involving moral turpitude, a determination affirmed by the BIA. See, e.g., Bakal v. Ashcroft, 2003 WL 103076 at *3-4 (6th Cir., Jan. 9, 2003) ("[t]heft is considered a crime of moral turpitude").
The immigration judge concluded that as a result of Petitioner's 1974 conviction for attempted breaking and entering (which pursuant to the clock-stopping provision "ended" his period of continuous residence) he failed to establish seven years of continuous residence in the United States as required by § 1229b(a). Accordingly, the immigration judge concluded that Petitioner did not qualify to apply for a waiver of deportation.
The issue raised by Generi's petition relates to this application of the clock-stopping provision of the IIRIRA. Petitioner asserts that it violates federal law to apply a provision enacted in 1996 to conduct which occurred in 1974.
II. Applicable Standard
Generi has filed his petition pursuant to 28 U.S.C. § 2241, which provides that habeas corpus relief may extend to any person "in custody in violation of the Constitution or laws or treaties of the United States." As the United States Supreme Court recently held, federal district courts have jurisdiction to resolve petitions for writ of habeas corpus filed under § 2241 by aliens subject to deportation. See Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 314 (2001); Ford v. Bureau of Immigration and Customs Enforcement's Interim Field Office Director for Detention and Removal for the Philadelphia District, 294 F. Supp.2d 655, 658 (M.D. Pa. 2003).
However, the Court's review of immigration decisions rendered by administrative agencies is limited. Specifically, the Court's jurisdiction extends only to "purely legal questions." See Ford, 294 F. Supp.2d at 658-59. Specifically, the Court must confine its review to "statutory and constitutional claims as well as claims asserting the erroneous application of legal principles to undisputed facts." Ford, 294 F. Supp.2d at 659; see also, Steinhouse v. Ashcroft, 247 F. Supp.2d 201, 205 (D. Conn. 2003) (pursuant to § 2241, the court may review only "purely legal claims"). Accordingly, the Court is precluded from reviewing "discretionary determinations" rendered by the administrative agency. Ford, 294 F. Supp.2d at 659.
III. Petitioner's Claim of Improper Retroactive Application
Petitioner initially claimed that application as to him of the statute at issue violated the Ex Post Facto Clause. Petitioner subsequently abandoned this claim, however. Petitioner did not assert this claim in his supplemental pleadings and he expressly abandoned his Ex Post Facto claim at oral argument. This appears to be an appropriate decision, as the Ex Post Facto Clause prohibits the retroactive application of penal legislation only, see Landgraf v. USI Film Products, 511 U.S. 244, 266 (1994), and immigration statutes are properly characterized as civil — not penal — measures. See Domond v. Immigration and Naturalization Service, 244 F.3d 81, 87 (2d Cir. 2001). Instead, as detailed below, Petitioner presently asserts that the statute at issue was retroactively applied to him contrary to federal law.
As the Supreme Court has indicated, "[r]etroactive statutes raise special concerns." Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 315 (2001). One of the concerns is that the legislative branch may be "tempted," due to "political pressures," to "use restrictive legislation as a means of retribution against unpopular groups or individuals." Id. Accordingly, congressional enactments "will not be construed to have retroactive effect unless their language requires this result." Id. at 315-16.
Despite the various concerns regarding retroactive legislation, "it is beyond dispute that, within constitutional limits, Congress has the power to enact laws with retrospective effect." Id. at 316.
Nonetheless, a statute may not be applied retroactively unless there exists "a clear indication from Congress that it intended such a result." Id.
The Supreme Court has articulated a two-step analysis by which to determine whether a federal statute may properly be applied retroactively. First, it must be determined whether Congress "has expressly prescribed the statute's proper reach." Martin v. Hadix, 527 U.S. 343, 352 (1999). If Congress has sufficiently articulated the temporal reach of the provision at issue, such intent shall prevail, subject to constitutional limitations. Id.; Landgraf v. USI Film Products, 511 U.S. 244, 266 (1994).
However, where there exists insufficient evidence of Congressional intent regarding a provision's temporal scope, the Court must determine whether "the application of the statute to the conduct at issue would result in a retroactive effect." Martin, 527 U.S. at 352. If such is the case, the "traditional presumption" against retroactive application applies, precluding application of the statute to the conduct at issue. Id.
A. Has Congress Expressly Prescribed the Statute's Proper Reach
The standard which Congress must satisfy before it can be said to have provided "unambiguous direction" regarding the temporal reach of a statute (or portion thereof) is "a demanding one." St. Cyr, 533 U.S. at 316. As the Supreme Court recently stated, "[C]ases where this Court has found truly `retroactive' effect adequately authorized by statute have involved statutory language that was so clear that it could sustain only one interpretation." Id. at 316-17. It must also be remembered that "any lingering ambiguities in deportation statutes" are to be construed "in favor of the alien." Id. at 320.
As indicated above, the "clock-stopping" provision of the IIRIRA provides that:
For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2) of this section, when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.8 U.S.C. § 1229b(d)(1).
The immigration judge who presided over this matter interpreted this provision as applying retroactively to Petitioner's 1974 conviction for attempted breaking and entering, thus terminating his period of continuous residence for purposes of seeking relief from deportation. Accordingly, the immigration judge found Petitioner ineligible to apply for a waiver of deportation. The decision of the immigration judge was subsequently upheld by the Board of Immigration Appeals (BIA).
As indicated above, the clock-stopping provision serves to terminate "any period of continuous residence" in two separate and distinct circumstances. It applies (1) when the alien is served a notice to appear under section 1229(a), or (2) when the alien commits an offense referred to in section 1182(a)(2) that renders him deportable under section 1227(a)(2) or 1227(a)(4). The clock-stopping provision contains no language addressing its retroactive applicability as to either of these two triggering events.
In fact, as courts have recognized, "the IIRIRA generally applies only to proceedings initiated on or after the statute's effective date of April 1, 1997." Rojas-Reyes v. Immigration and Naturalization Service, 235 F.3d 115, 120 (2d Cir. 2000) (citing IIRIRA § 309(c)(1), 110 Stat. at 3009-625 (codified at 8 U.S.C. § 1101 note)). As part of the IIRIRA, however, Congress enacted a "transitional rule" that provides as follows:
Transitional Rule With Regard to Suspension of Deportation — Paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act (relating to continuous residence or physical presence) shall apply to notices to appear issued before, on, or after the date of enactment of this Act.See, e.g., Rojas-Reyes, 235 F.3d at 120 (quoting IIRIRA § 309(c)(5), 110 Stat. at 3009-627).
Section 240A(d) refers to 8 U.S.C. § 1229b(d), the clock-stopping provision.
Thus, while the transitional rule, an express exception to the general rule that the IIRIRA is to be applied prospectively only, states that the clock-stopping provision is to apply retroactively as to "notices to appear," it makes no such pronouncement regarding the retroactive application of the clock-stopping provision as to crimes committed prior to the enactment of the IIRIRA (the very circumstance presented by Generi's petition). In other words, the transitional rule expressly addresses itself to one of the two triggering events articulated in the clock-stopping provision, but is completely silent as to the other.
The transitional rule (consistent with the language of the clock-stopping provision) makes reference to "notices to appear," the document by which deportation proceedings are commenced. This reference caused confusion, however, because prior to the enactment of the IIRIRA deportation proceedings were commenced by service of a charging document called an "order to show cause." See Rojas-Reyes, 235 F.3d at 120. It was unclear, in other words, whether the clock-stopping provision applied retroactively as to orders to show cause. See, e.g., Ashki v. Immigration and Naturalization Service, 233 F.3d 913, 917-18 (6th Cir. 2000).
Congress subsequently resolved any ambiguity in the language employed in the transitional rule. On November 19, 1997, Congress enacted the Nicaraguan Adjustment and Central American Relief Act (NACARA), one purpose of which was to amend the transitional rule. See Pub.L. No. 105-100, 111 Stat. 2160. As amended by NACARA, the transitional rule articulated in the IIRIRA provides as follows:
Paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act (relating to continuous residence or physical presence) shall apply to orders to show cause . . . issued before, on, or after the date of enactment of this Act.See Ashki, 233 F.3d at 918 (quoting NACARA § 203(a), 111 Stat. at 2196 (emphasis added)).
By amending the IIRIRA transitional rule, through enactment of NACARA, Congress again expressed its considered judgment regarding the extent to which the clock-stopping provision should be given retroactive application. While Congress indicated that the clock-stopping rule should be retroactively applied as to orders to show cause issued prior to the enactment of the IIRIRA, Congress was again completely silent on the issue of whether the clock-stopping provision should be applied retroactively to crimes committed prior to the enactment of the IIRIRA.
It is important to recognize that Congress enacted the IIRIRA (including its clock-stopping provision and transitional rules), as well as NACARA, against the backdrop of the Landgraf Court's instruction to Congress that if it intended for a statute (or portion thereof) to be applied retroactively, it must clearly articulate such an intention. Congress, however, has not articulated any intention to retroactively apply the clock-stopping provision to crimes which were committed prior to the enactment of the IIRIRA. As has been recognized:
Congress presumably was well aware of the teachings of Landgraf — including its admonition that Congress should be explicit when it intended a new law to apply retroactively — when it elected not to include explicit language making the clock stopping provision applicable to crimes committed prior to the effective date of IIRIRA where cancellation proceedings were not commenced until later.Henry v. Ashcroft, 175 F. Supp.2d 688, 694-95 (S.D.N.Y. 2001).
With respect to retroactivity, the distinction which Congress has evidently made between the two triggering events articulated in the clock-stopping provision sufficient to terminate an alien's period of continuous residence — orders to show cause/notices of intent on the one hand and the commission of certain crimes on the other — is reasonable when Congress' intent in enacting the transitional rule is properly understood.
Prior to the enactment of the IIRIRA, the time an alien spent in deportation proceedings counted toward the physical presence requirement necessary to be eligible to request a waiver of deportation. See Appiah v. Immigration and Naturalization Service, 202 F.3d 704, 707 (4th Cir. 2000); Rojas-Reyes, 235 F.3d at 124. Thus, aliens served with an order to show cause often had a significant incentive to purposely delay their deportation proceedings until they accrued the seven years of continuous residence required to be eligible to request a waiver of deportation. The transitional rule was enacted by Congress to specifically address this circumstance. See Rojas-Reyes, 235 F.3d at 124; Henry, 175 F. Supp.2d at 695.
The concern which Congress attempted to address by enactment of the transitional rule — purposeful delays by aliens against whom deportation proceedings had been initiated so as to later qualify for a waiver of deportation — is simply not present with respect to aliens such as Generi. Because the clock-stopping provision serves to terminate an alien's period of continuous residence upon the commission of certain offenses, as opposed to a conviction thereof, the motivation to delay the relevant proceedings discussed above is simply not present.
In sum, while Congress has expressly stated that the clock-stopping provision is to be retroactively applied as to orders to show cause issued prior to the enactment of the IIRIRA, Congress has made no such affirmative declaration that the clock-stopping is to be applied to crimes committed prior to the enactment of the IIRIRA. Moreover, there exists evidence that had Congress intended the clock-stopping provision to apply retroactively to pre-IIRIRA criminal conduct, it clearly understood how to achieve that result.
In 1986, Congress passed the Immigration Reform and Control Act of 1986 (IRCA). See Moosa v. Immigration and Naturalization Service, 171 F.3d 994, 999 (5th Cir. 1999). The IRCA articulated certain amnesty provisions pursuant to which illegal aliens could be granted lawful permanent residence if certain conditions were satisfied. See Hussein v. Immigration and Naturalization Service, 61 F.3d 377, 378 (5th Cir. 1995). One of these criteria was that the alien could not have been convicted of a felony. See Moosa, 171 F.3d at 1000. The IRCA, however, did not define the term "conviction." Id. In the absence of a statutory definition of "conviction," the BIA articulated and employed its own definition.
As part of the IIRIRA, Congress addressed this issue, expressly articulating a definition of the term "conviction." See Moosa, 117 F.3d at 1001-02. The definition of "conviction" articulated by Congress went beyond that adopted by the BIA. Id. at 1002. Congress, moreover, expressly stated that its definition of "conviction" was to apply "to conviction and sentences entered before, on, or after" the date of the enactment of the IIRIRA. Id. at 1006.
Thus, while this particular provision is not presently relevant, it does tend to demonstrate that when Congress enacted the IIRIRA it was capable of making provisions thereof applicable to pre-IIRIRA criminal conduct. That Congress did so in one context but expressly failed to do so with respect to the provision presently at issue is, in my opinion, even further evidence that Congress did not intend the clock-stopping provision to be applied to criminal conduct (such as Generi's 1974 conviction) which predated the enactment of the IIRIRA.
Such overwhelming evidence regarding Congressional intent — or lack thereof — notwithstanding, Respondents nonetheless contend that Congress has expressly articulated its desire that the clock-stopping provision be applied retroactively to pre-IIRIRA conduct.
Respondents assert that "every removal proceeding" conducted pursuant to 8 U.S.C. § 1229(a) to determine the deportability of an alien is commenced by the filing of a notice to appear. While this statement appears accurate, Respondents further assert that "[b]y making section 1229b(d)(1) applicable to orders to ALL show cause issued before, on, or after the effective date of IIRIRA, Congress was unambiguously making that section applicable toall removal proceedings, that is, proceedings commenced before, on, or after April 1, 1997."
It should be noted that all the cases to which Respondents cite in support of their argument that Congress has expressly stated its desire to retroactively apply the clock-stopping provision to pre-IIRIRA criminal conduct address a separate issue than that presented by Generi's petition. The cases on which Respondents rely all address the retroactive application of the clock-stopping provision as to orders to show cause issued prior to the enactment of the IIRIRA.
The question, however, is not whether the clock-stopping provision is applicable to all removal proceedings initiated by a notice to appear or an order to show cause. Rather, the issue is whether a particular change in the law articulated by the IIRIRA (that the commission of certain crimes terminates an alien's period of continuous residence for purposes of seeking a waiver of deportation) will be applied retroactively as to crimes committed prior to the enactment of the IIRIRA.
The clock-stopping provision provides that an alien's period of continuous residence (for purposes of seeking a waiver of deportation) terminates upon the occurrence of either (1) the issuance of a notice to appear/order to show cause, or (2) the commission of certain crimes. Congress recognized a reasonable distinction between these two different types of triggering events and while it clearly articulated its desire to retroactively apply the clock-stopping provision as to the former, it was completely silent as to the retroactive application of the clock-stopping provision to the latter.
As previously noted, the authority on which Respondents rely in support of their position on this issue is factually distinct and addresses a circumstance not presently before the Court. I have located only two instances in which courts have examined this issue in the context of the question raised by Generi's petition. Both courts determined that Congress did not clearly articulate its desire that the clock-stopping provision be retroactively applied to criminal conducted committed prior to the enactment of the IIRIRA. See Worrell v. Ashcroft, 207 F. Supp.2d 61, 67 (S.D.N.Y. 2002) ("Congress dis not clearly prescribe 8 U.S.C. § 1229b(d)(1)'s temporal reach"); Henry v. Ashcroft, 173 F. Supp.2d 688 (S.D.N.Y. 2001) (Congress "did not clearly intend for the clock stopping provision to apply retroactively to crimes committed before its effective date"). With respect to this issue, I agree with the conclusion reached by these courts and find that it is consistent with the authority detailed above.
As discussed above, the requisite intent to retroactively apply a statute (or portion thereof) must be evidenced clearly and unambiguously. The most that can be said for Respondents' argument is that it is based on implication and conjecture. However, such is an insufficient basis from which to conclude that Congress intended to retroactively apply a particular statute (or portion thereof).
B. Does the Statute have a Retroactive Effect
Even assuming that the clock-stopping provision is being retroactively applied by the BIA contrary to Congressional intent, Petitioner cannot prevail unless he also demonstrates that such application of the statute imposes an impermissible retroactive effect.
As the Supreme Court has held, a statute has an impermissible retroactive effect when it "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past." St. Cyr, 533 U.S. at 321. The Court further stated that the determination whether a particular provision acts retroactively "should be informed and guided by `familiar considerations of fair notice, reasonable reliance, and settled expectations.'" Id.
Respondents deny that application of the clock-stopping provision as to Petitioner results in an impermissible retroactive effect. In support of their argument, Respondents first point to Petitioner's 2001 conduct. Specifically, Respondents claim that when Petitioner decided in 2001 "to use and possess controlled substances," he could not have had any expectation that he would be eligible to seek a waiver of deportation given "the language of section 309(c)(5) and case law interpreting that language.
As previously discussed, however, while section 309(c)(5) states that the clock-stopping provision is to be retroactively applied as to notices to appear, neither section 309(c)(5), nor the authority interpreting it, address the retroactive application of the clock-stopping provision to criminal conduct committed prior to the enactment of the IIRIRA. Accordingly, section 309(c)(5) cannot be said to have given Petitioner notice that the BIA would retroactively apply the clock-stopping provision to criminal conduct committed prior to the enactment of the IIRIRA in a manner inconsistent with both its express language and clearly expressed congressional intent.
Respondents also look to Petitioner's 1974 conduct to support their argument. Specifically, Respondents assert that Petitioner "cannot credibly maintain that when he decided to break and enter with the intent to commit larceny in 1974 he had any expectations, settled or otherwise, about what the immigration consequences of that conduct might be." Respondents conclude, therefore, that "the fact that those consequences are different today than they were then does not give rise to an impermissible retroactive effect."
In my opinion, however, this argument misses the target. The issue here is not whether Petitioner considered the possible immigration consequences of his actions prior to committing breaking and entering in 1974. Instead, the Court must consider Petitioner's settled expectations as they existed immediately prior to the enactment to the IIRIRA and determine whether the passage of the IIRIRA impermissibly upset those expectations.
Immediately prior to the enactment of the IIRIRA, Petitioner was eligible (under pre-IIRIRA law) to request discretionary relief from deportation. Respondents conceded this point at oral argument. If, for example, Petitioner had been convicted of drug use in 1995 (instead of 2001), he would have been eligible to seek a waiver of deportation because he had by that time satisfied the residency requirements as articulated in pre-IIRIRA law.
In other words, through the date of September 29, 1996, the day before the IIRIRA was enacted, Petitioner possessed the settled expectation that if he committed certain deportable offenses (such as drug use) he would nonetheless be eligible to seek a waiver of deportation, his 1974 conviction notwithstanding.
The passage of the IIRIRA, however, overturned that settled expectation by, in effect, reaching back 22 years into the past to retroactively modify the immigration consequences of Petitioner's 1974 conduct. As the Henry court observed, a "right to discretionary relief is a substantive right" and "it is the retroactive denial of an already accrued eligibility for discretionary relief that gives the clock stopping provision its impermissible retroactive effect." Henry 175 F. Supp.2d at 695-96.
The Henry case is the only reported case which I have located addressing the precise issue presented by Generi's petition — the retroactive application of the clock-stopping provision to criminal conduct committed prior to the enactment of the IIRIRA — and is consistent with the factual circumstance presently before the Court.
Jenny Henry arrived in the United States in 1984, and was convicted of petit larceny in 1987. Id. at 691. In 2000, Henry was twice convicted of petit larceny, rendering her deportable. After being found deportable, Henry petitioned for a waiver of removal. The BIA denied Henry's request on the ground that the clock-stopping provision applied retroactively to her 1987 conviction, thus terminating her period of continuous residence (for purposes of seeking a waiver of removal) prior to establishing the necessary seven years continuous residence. Id.
Absent the retroactive application of the clock-stopping provision, Henry (just like Generi) would have qualified to seek a waiver of deportation. In her petition for writ of habeas corpus, Henry asserted the very claim asserted presently by Generi, namely that the clock-stopping provision was unlawfully applied retroactively to criminal conduct committed prior to the enactment of the IIRIRA, thus unlawfully precluding her from seeking a waiver of deportation.
The Henry court first determined that Congress "did not clearly intend for the clock stopping provision to apply retroactively to crimes committed before its effective date." Id. at 695. With respect to whether retroactive application of the clock-stopping provision imposed upon Henry an impermissible retroactive effect, the court concluded that "a right to discretionary relief is a substantive right, and the elimination of even the possibility of obtaining relief thus has a retroactive effect." Id. at 696 (citing Warden, Lewisburg Penetentiary v. Marrero, 417 U.S. 653, 663 (1974)). As discussed herein, I concur with the Henry court's resolution of this matter.
I have located only one other reported decision, Worrell v. Ashcroft, 207 F. Supp.2d 61 (W.D.N.Y. 2002), which addresses the general issue presented by Generi's petition — the retroactive application of the clock-stopping provision to criminal conduct committed prior to the enactment of the IIRIRA. While this case is factually distinct and, therefore, not directly applicable to the circumstance presently before the Court, it nonetheless indirectly supports the conclusion reached by the Henry court.
In Worrell, the court examined the application of the clock-stopping provision as to criminal conduct which occurred in 1990. Id. at 62. The court undertook the same two-step analysis identified above, first concluding that "Congress did not clearly prescribe 8 U.S.C. § 1229b(d)(1)'s temporal reach." Id. at 67. With respect to whether the retroactive application of the clock-stopping provision as to Worrell resulted in a "retroactive effect," the court concluded that it did not. Id. at 67-69. The basis for this conclusion, however, is distinguishable from the circumstance presently before the Court. Specifically, the court observed that because Worrell "was never eligible" to request a waiver of deportation, the enactment of the IIRIRA did not result in a "retroactive effect." Importantly, however, the court, in articulating this distinction, discussed with approval the Henry decision.
In conclusion, for the reasons articulated herein, I conclude that the retroactive application of the clock-stopping provision as to Petitioner violates clearly established federal as articulated by the United States Supreme Court in Landgraf and its progeny.
CONCLUSION
For the reasons articulated herein, I recommend that Generi's petition for writ of habeas corpus be granted and that he be permitted to apply for a waiver of deportation.
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time waives the right to appeal the District Court's order. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
Respectfully submitted,