Summary
rejecting petitioner's argument that both his § 212(c) application and the immigration judge's decision were made before he had served five years
Summary of this case from Flores-Diaz v. U.S.Opinion
Civil Action No. 01-30160-MAP
April 9, 2002
I. INTRODUCTION
Petitioner Anthony Gomes ("petitioner") seeks a writ of habeas corpus preventing his immediate deportation as an alien convicted of rape, an aggravated felony. He claims that the Board of Immigration Appeals may not deport him without first reviewing his application for a discretionary waiver. This court stayed the deportation on August 29, 2001, in order to consider petitioner's claim. Respondents move to dismiss the petition, and to vacate the stay. For the reasons discussed below, petitioner's motion will be denied, and respondents' motions to dismiss and to vacate the August 29, 2001 stay will be allowed.
II. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was born in, and is a citizen of, Trinidad. He was admitted to the United States as a permanent resident on August 12, 1972. (Docket 5, Exhibit A at 1). In mid-August, 1992, petitioner was convicted by a jury in Worcester Superior Court of four counts of rape, an "aggravated felony." Id. at 2. He received six to ten years on the first three counts and six to twenty years on the fourth count. (Docket 5 at 3). On November 30, 1994, while petitioner was serving these sentences, the Immigration Naturalization Service ("INS") instituted deportation proceedings against him as an alien convicted of an aggravated felony. (Docket 5, Exhibit A at 1).
On January 30, 1996, petitioner applied for a discretionary waiver from deportation under § 212(c) of the Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1182(c) (repealed Pub.L. 104-208, Div. C, Title III § 304(b), Sept. 20, 1996, 110 Stat. 3009-597). (Docket 5, Exhibit A at 3). At the time, § 212(c) precluded discretionary relief for anyone convicted of an "aggravated felony" who had served a term of imprisonment of at least five years. 8 U.S.C. § 1182(c) (1994). Although the rape offenses underlying petitioner's 1992 convictions were unquestionably "aggravated felonies," petitioner had not yet served five years at the time of his § 212(c) application.
On February 15, 1996, an Immigration Judge ("IJ") began an evidentiary hearing on petitioner's § 212(c) application. (Docket 5, Exhibit A at 3). This hearing was adjourned until October 23, 1996, in order to give petitioner more time to collect evidence in support of his application. Id.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). Section 440(d) of the AEDPA narrowed § 212(c) to make aliens convicted of "aggravated felonies" ineligible for a waiver of deportation, regardless of the amount of time served. On September 30, 1996, Congress repealed § 212(c) with the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (1996) ("IIRIRA"). IIRIRA created a new provision entitled "Cancellation of Removal." 8 U.S.C. § 1229b. Like AEDPA's revision, § 1229b made it clear that aliens convicted of "aggravated felonies" were ineligible for discretionary relief. 8 U.S.C. § 1229b(a)(3). In addition, § 321 of IIRIRA expanded the definition of "aggravated felony," and made this expansion explicitly retroactive. 8 U.S.C. § 1101(a) (43).
On October 23, 1996, the IJ concluded the § 212(c) hearing and ordered petitioner deported. The IJ found petitioner ineligible for relief in light of AEDPA and IIRIRA's amendments, holding that AEDPA applied retroactively in the case of aggravated felons. The IJ explained that petitioner was convicted of rape, an aggravated felony, and was therefore flatly ineligible for § 212(c) relief under AEDPA and IIRIRA.
In the alternative, the IJ gave "a full decision on 212(c) relief under the law preexisting AEDPA. . . ." (Docket 5, Exhibit A at 5). The decision spanned approximately ten pages, and included a detailed discussion and analysis of petitioner's circumstances. Although petitioner was married and had one child, he was estranged from both, and both had received public assistance. Id. at 8. Petitioner had family, but neither his siblings nor parents testified on his behalf. Id. Petitioner was found to have a serious drug and alcohol addiction that he was unable to control outside of prison. Id. at 14-15. Most importantly, the IJ found that petitioner had not taken responsibility for his actions, and was not rehabilitated. Id. at 10-15. Therefore, the IJ found that "the waiver should be denied in the exercise of discretion." Id. at 15.
Petitioner appealed to the Board of Immigration Appeals ("BIA"). While this appeal was pending, petitioner continued to serve his term of imprisonment for the 1992 rape convictions. In August, 1997, petitioner reached the five-year mark on his term of imprisonment.
On October 31, 1997, the BIA affirmed the deportation decision. In its one-paragraph decision, the BIA held that because petitioner had been convicted of one or more aggravated felonies, the AEDPA retroactively precluded him from obtaining § 212(c) relief. The BIA did not review the IJ's decision that petitioner, even under pre-AEDPA law, was not entitled to discretionary relief in any event. (Docket 5, Exhibit B).
On May 9, 2001, after having served almost nine years, petitioner was released from criminal detention into INS custody. He was scheduled to be deported on September 4, 2001. On August 29, 2001, petitioner applied to this court for a writ of habeas corpus, and for an order staying his removal, claiming that under the Supreme Court's decision in I.N.S. v. St. Cyr, 533 U.S. 289 (2001), he was denied a proper discretionary hearing in violation of federal law. (Dockets 1 and 2).
On September 6, 2001, petitioner amended his petition to make it clear that he was complaining of the BIA's failure to review his § 212(c) hearing. (Docket 6).
This court stayed the deportation on August 29, 2001, in order to consider petitioner's habeas application. (Docket 3). Respondents now move to dismiss the petition, and to vacate the August 29, 2001 stay.
III. DISCUSSION
A. INS v. St. Cyr
Petitioner's argument, based on the Supreme Court's decision in INS v. St. Cyr, 121 S.Ct. 2271 (2001), is unsupportable. Petitioner mischaracterizes St. Cyr as holding that "anyone convicted prior to AEDPA would continue to be eligible for such relief, regardless of when placed into proceedings." (Docket 2 at 2). As respondents point out, St. Cyr held only that AEDPA should not be interpreted to apply retroactively to defendants who had pled guilty to an aggravated felony. 121 S.Ct. at 2293. The Court found that alien defendants charged with an aggravated felony pre-AEDPA, when deciding whether to plead guilty, would almost certainly have relied on the possibility of obtaining discretionary relief from deportation. Id. Therefore, the retroactive elimination of any possibility of a discretionary waiver would raise serious constitutional concerns. Id. Because a close reading of the relevant provisions of AEDPA and IIRIRA did not require a finding that they be applied retroactively, the Court found that "§ 212(c) relief remains available for aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding these convictions, would have been ineligible for § 212(c) relief at the time of their plea under the law then in effect." Id.
Petitioner's case raises a set of concerns not addressed in St. Cyr. Most significantly, petitioner was convicted by a jury, and therefore obviously cannot complain that his plea was premised on the availability of § 212(c) relief. St. Cyr is simply inapposite.
B. AEDPA Retroactivity
Petitioner is correct, however, in contending that the BIA erred when it found that AEDPA applied retroactively to him. In Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998), after an exhaustive review of the statutory language and legislative history, the First Circuit found that AEDPA did not eliminate § 212(c) relief for deportable aliens who had applications for such relief pending when AEDPA became effective on April 24, 1996. Id. at 133. See also Mattis v. Reno, 212 F.3d 31, 33 (1st Cir. 2000). As the First Circuit noted, § 440(d) did not contain an "effective date" provision indicating congressional retroactive intent. This fact, along with the presumption against retroactivity articulated in Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994), was sufficient in and of itself to support a conclusion that § 440(d) was not retroactive. 144 F.3d at 129-130.
In addition, the First Circuit noted that "the original Senate version of the bill which became AEDPA did contain express language making the provision which became AEDPA § 440(d) retroactive; but this language was eliminated by the conference committee and was not included in the final bill." Id. at 131 (emphasis in original). Further, in other sections of AEDPA, Congress explicitly included "effective date" provisions which indicated its intent to make those provisions retroactive. In particular, the First Circuit pointed to § 413(g) of AEDPA pertaining to alien terrorists. Id. at 129. The "effective date" provision at § 413(g) provided that the amendment laid out in § 413 would apply to applications filed "before, on, or after" the date of AEDPA's enactment. Therefore, it was clear that Congress did not intend for § 440(d) to apply retroactively to § 212(c) applications pending before AEDPA's date of enactment. Id. at 133.
Although the petitioner in Goncalves was deportable for having been convicted of "crimes involving moral turpitude," id. at 112, and petitioner is deportable for having been convicted of rape, an "aggravated felony," that distinction is irrelevant for purposes of the retroactivity analysis. Section 440(d) applied to both classes of crimes. Notably, the only effective date provision in § 440 was at § 440(f), which provided that the amendment to the definition of "aggravated felony" in AEDPA § 440(e) would "apply to convictions entered on or after the enactment of this Act. . . ." (emphasis added).
Petitioner was convicted in August, 1992, and applied for § 212(c) relief on January 30, 1996. Therefore, his application was pending when AEDPA was enacted. Section 440(d) of AEDPA should not have been applied retroactively to petitioner.
C. Harmless Error
The BIA's error does not, however, necessitate a denial of respondents' motion to dismiss because the error was harmless. "Where, as a matter of law, [the deportee] is ineligible for the relief he sought, remand to the Board is unnecessary despite a clear error, as he suffers no unfair prejudice." Griffiths v. INS, 243 F.3d 45, 55 (1st Cir. 2001) (denying petitioner's request, despite BIA's mistaking § 212(h) waiver application for § 212(c) application, when remand "would serve no useful purpose"). See also White v. INS, 17 F.3d 475, 480 (1st Cir. 1994) (affirming denial of § 212(c) relief when error was harmless). Although Griffiths and White were decided on direct review, no authority or rationale suggests that the doctrine is inapplicable on collateral review. See Brecht v. Abrahamson, 507 U.S. 619 (1993).
As will be seen, the BIA's mistake was harmless for two reasons: (1) the five-year cut-off foreclosed relief, and (2) petitioner received a full and fair § 212(c) hearing in any event.
1. Five years imprisonment
Petitioner had served more than five years imprisonment when the BIA dismissed his deportation appeal on October 31, 1997. Prior to the enactment of AEDPA, § 212(c) relief was not available for "an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years." 8 U.S.C. § 1182(c) (1994). Unlike AEDPA, the so-called "five-year rule" was in effect when petitioner was convicted in 1992. Petitioner had served a term of imprisonment of at least five years prior to the BIA's decision; therefore he was ineligible for § 212(c) relief even under pre-AEDPA law.
Petitioner attempts to resist this finding in two ways. First, he points out that both his § 212(c) application and the IJ's decision were made before he had served five years. However, this response has been rejected by the federal courts. Buitrago-Cuesta v. INS, 7 F.3d 291, 296 (2d Cir. 1993) (considering time spent in prison during course of hearing); Mezrioui v. INS, 154 F. Supp.2d 274, 277 (D.Conn. 2001) (same); See also Giusto v. INS, 9 F.3d 8, 11 (2d Cir. 1993) (noting that "if the sentence is five years or longer, the mere fact that the INS initiated deportation proceedings early would not make the waiver available."). Petitioner cites no authority, and none has been found by the court, to support petitioner's reading of 212(c) pre-AEDPA.
Second, petitioner contended at oral argument that the five-year rule had a kind of grandfather clause for aliens who entered the country before the rule was put into place in 1990. See Immigration Act of 1990, Pub.L. No. 101-649, § 511(a), 104. Stat. 4978, 5052 (1990). Petitioner entered the country in 1972, and therefore claims that he may serve five years of imprisonment for an aggravated felony and still be eligible for a discretionary waiver. Again, this argument is unpersuasive and unsupported by authority. Abundant authority establishes that the five-year rule applied to convictions occurring prior to 1990, so long as the § 212(c) application was made after 1990. See, e.g., Scheidemann v. INS, 83 F.3d 1517, 1526 (3rd. Cir. 1996). The rule applies no less to petitioner, whose committed his crime on March 8, 1992, was convicted in August, 1992, and applied for 212(c) relief on January 30, 1996. Section 212(c) relief is discretionary, and while Congress left the door ajar for some aggravated felons pre-AEDPA, the crack is not wide enough to admit petitioner.
2. § 212(c) hearing
Respondent also points out that petitioner already has received a full and fair § 212(c) hearing. As noted, the IJ found in a thoughtful and comprehensive decision that petitioner (1) had committed several acts of rape but refused to accept responsibility; (2) had no significant family connections; and (3) had a serious drug and alcohol addiction that he was unable to control outside of prison. Notably, petitioner points to no errors in the IJ's findings of fact or analysis. Review by the BIA of the IJ's findings "would serve no useful purpose." Griffiths, 243 F.3d at 55.
IV. CONCLUSION
For the reasons set forth above, petitioner's motion for a writ of habeas corpus is hereby DENIED. Respondents' motions to dismiss, and to vacate the August 29, 2001 stay are hereby ALLOWED. The clerk will enter judgment for respondents.
A separate order will issue.
ORDER
For the reasons stated in the accompanying Memorandum, petitioner's motion for a writ of habeas corpus (Docket #1) is hereby DENIED. Respondents' motions to dismiss (Docket #4) and to vacate the August 29, 2001 stay (Docket #5) are hereby ALLOWED. The clerk will enter judgment for respondents.
It is So Ordered.