Opinion
Civil Action No. 01-3271 (JWB)
August 6, 2002
STRUBLE RAGNO PETRIE BONANNO MacMAHON ACQUAVIVA, Scot D. Rosenthal, Esquire, Riverdale, New Jersey; (Attorneys for Plaintiff).
CHRISTOPHER J. CHRISTIE, United States Attorney, Thomas R. Calcagni, Assistant United States Attorney, Newark, New Jersey; (Attorney for Defendants).
OPINION
This matter comes before the Court on a motion to lift the Court's previous Order staying deportation and a cross-motion directing immigration officials to reopen deportation proceedings concerning petitioner Sydney Nathaniel Lim ("petitioner" or "Mr. Lim") to permit an application for a discretionary waiver of admissibility under Section 212(c) of the Immigration and Naturalization Act ("INA"). Mr. Lim is in custody at the Hudson County Jail pursuant to an Order of Deportation that became final on July 2, 1999. This action was commenced with the filing of a Verified Complaint and Habeas Corpus Petition on July 11, 2001 ("Petition/Complaint"), and concurrent application for an order staying petitioner's deportation. Following a hearing on an order to show cause, the Court ordered a stay of deportation to permit petitioner to exhaust state remedies on the issue of the validity of a guilty plea entered on a state charge of kidnapping.
On January 15, 2002, the New Jersey Superior Court held proceedings on the application for post-conviction relief, which resulted, pursuant to a plea agreement, in the vacation of the kidnapping charge and the petitioner's entering of a plea of guilty to a charge of aggravated assault pursuant to N.J.S.A. 2C:12-1(b)(4). Thereafter, this Court extended the stay to permit petitioner to apply to the Board of Immigration Appeals ("BIA") for reopening of the deportation proceedings based on the state court's action. Following the BIA's denial of the requested relief by decision dated April 30, 2002, the government submitted the instant request to remove the stay of deportation. Petitioner opposes this request and seeks an order vacating the Order of Deportation, remanding the matter to the immigration courts on the issue of petitioner's entitlement to relief under Section 212(c) of the INA, and directing a bond inquiry before an immigration judge.
This Court's jurisdiction is founded on 28 U.S.C. § 1331 and 2241.
FACTUAL AND PROCEDURAL BACKGROUND
1. Biographical Facts and Pre-Petition Proceedings
Sydney Nathaniel Lim, a native and citizen of Jamaica, born February 14, 1969, entered the United States on or about September 20, 1985, with his parents, as a lawful permanent resident. Mr. Lim served in the United States military from November 7, 1986 to November 6, 1994, receiving an honorable discharge. During this period, the United States prosecuted a military campaign in the Persian Gulf; military service during the Gulf War was later recognized by presidential order as a basis for seeking naturalization. Mr. Lim's father, mother, brother and sister reside in the United States, as does his United States-born child. Mr. Lim graduated from Trenton Central High School and was employed as a member of the Iron Workers and Riggers Union, Local 68, prior to his incarceration.
On December 20, 1993, before the Superior Court of New Jersey, Mr. Lim pleaded guilty to possession of marijuana, with intent to distribute, within 1,000 feet of a school under N.J.S.A. 2C:35-7; 5a(1); 5b(11). He was sentenced to a three-year term of incarceration with one year parole ineligibility. (Calcagni Cert., Exh. 2)
On August 24, 1995, petitioner was indicted by a grand jury in the Superior Court of New Jersey, Law Division, Mercer County, with nine criminal offenses arising from his conduct of June 2, 1995. (Count II charged kidnapping (second degree) in violation of N.J.S.A. 2C:13-1b. Counts IV and V charged petitioner with aggravated assault (fourth degree) in violation of N.J.S.A. 2C:12-1b(4) based on the allegation that he pointed a handgun in the direction of two persons, knowingly under circumstances manifesting extreme indifference to the value of human life. (Calcagni Cert., Exh. 3). On September 23, 1996, the indictment was disposed of with petitioner's entry of a guilty plea to the kidnapping charge in Count II. He was sentenced to an eight-year custodial sentence with four years mandatory parole ineligibility. Petitioner was represented by counsel on the criminal charges; however, petitioner has asserted in these proceedings that his defense counsel neglected to advise him adequately that deportation was a possible consequence of his entering a plea of guilty on the charged offense. (Petitioner's Letter-Br. of June 11, 2001 (amending Mr. Lim's factual and legal argument in support of the Petitioner/Complaint))
On June 1, 1998, the INS issued a Notice to Appear charging petitioner with being subject to removal from the United States on the basis of these two convictions. In the proceedings that followed, Mr. Lim was represented by counsel, who, it is alleged in the Petition/Complaint, was ineffective for a number of reasons: (1) counsel improperly advised Mr. Lim to remain silent and invoke the Fifth Amendment's protection against self-incrimination in the face of questions posed by the immigration judge; (2) counsel did not seek naturalization for Mr. Lim based on his military service; and (3) counsel failed to seek relief under Section 212(c) of the INA, a former provision of the INA that afforded the Attorney General broad discretion to waive deportation in certain cases but has been significantly restricted since the effective dates of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 110 Stat. 1214, enacted April 24, 1996, and subsequently repealed and replaced with a more narrow provision by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), enacted September 30, 1996, 110 Stat. 3009-546. Ultimately, the immigration judge sustained the government's allegations and ordered Mr. Lim deported to Jamaica.
Counsel filed a timely notice of appeal, asserting only that the INS had failed to sustain its burden of establishing the elements of removability. On July 2, 1999, the BIA issued a decision, dismissing the appeal, rendering the Order of Deportation final. Incarcerated at that time, Mr. Lim submits that he did not receive a copy of the decision either from his attorney or directly from the BIA until long after the deadline for filing a motion for reconsideration expired. The BIA denied Mr. Lim's subsequent pro se motion for reconsideration as untimely.
2. The Instant Petition/Complaint and Subsequent Proceedings
On July 11, 2001, Mr. Lim, represented by new counsel, filed a Petition/Complaint and application for an order to show cause seeking a stay of his deportation to Jamaica, as to which there were no judicial impediments. The Petition/Complaint contains two claims. The first claim asserts that Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, enacted April 24, 1996, 100 Stat. 1214, cannot be applied to Mr. Lim's case because it would constitute an improper retroactive elimination of Section 212(c) relief. The second claim alleged that the BIA's denial of his pro se motion to reconsider its earlier decision that rendered final the Order of his deportation violated due process because it was based solely on the untimeliness of the motion.
Early in these proceedings, it became clear that there was a substantial factual error underlying Mr. Lim's primary claim. Petitioner's retroactivity argument was founded on the notion that he pleaded guilty to kidnapping prior to April 24, 1996, the enactment date of Section 440(d) of the AEDPA. See Sandoval v. Reno, 166 F.3d 225, 242 (3d Cir. 1999). The government has shown, and petitioner has conceded, that the date of the guilty plea to the kidnapping charge was subsequent to that date. In his reply submission, petitioner amended his legal and factual arguments to include a collateral attack on the efficacy of the kidnapping plea itself. At the hearing on the Order to Show Cause, the Court granted a stay of deportation for 120 days to permit petitioner to exhaust state remedies concerning the collateral challenge to his guilty plea on the kidnapping charge.
On January 15, 2002, the Superior Court of New Jersey held proceedings on Mr. Lim's ensuing petition for post-conviction relief. The transcript shows that at the outset the court was presented with an arrangement in the nature of a plea agreement, that had been reached prior to the hearing between Mr. Lim and state authorities. Pursuant to the arrangement, the following actions were taken at the hearing: (1) the state court permitted Mr. Lim to withdraw his earlier plea to the kidnapping charge and enter a plea of guilty to a charge in the original indictment of aggravated assault; (2) the court vacated the kidnapping conviction and stated that the date of the new plea should be treated for immigration purposes as having been entered on March 18, 1996 (a fictitious date as far as the record reveals); (3) the state dismissed voluntarily the remaining charges; (4) the court sentenced Mr. Lim to time served. (Calcagni Cert., Exh. 16). All agreed that the foregoing arrangement's purpose was to facilitate Mr. Lim in avoiding deportation; by attempting to amend the date of conviction, Mr. Lim and his counsel sought to avoid the AEDPA amendment and preserve his eligibility for Section 212(c) consideration.
Following the disposition of the state court proceedings, this Court on request and consent of the parties, extended the stay of deportation to permit an application to the BIA to reopen the immigration proceedings in light of the state court's amendment of the conviction. On April 30, 2002, the BIA denied the ensuring request for said discretionary relief, rejecting the efficacy of the effort to "back-date" the prior conviction and finding that Mr. Lim was not eligible for Section 212(c) relief. (Calcagni Cert., Exh. 19).
DISCUSSION
A. Introduction
Presently before the Court is the government's motion to lift the stay on petitioner's removal. It argues that the stay was entered in order to permit petitioner to file a motion with the BIA to reopen the deportation proceedings and that this was accomplished when the BIA denied the motion by its written decision of April 30, 2002. Petitioner has responded by way of a cross-motion for an order directing the BIA to reopen the proceedings in light of the disposition before the state court of petitioner's application for post-conviction relief. These applications are in substance a dispute directed to the plaintiff's original claim that he is not barred from seeking from the Attorney General a discretionary waiver of inadmissibility under former Section 212(c) and its subsequent interpretations by the BIA. See generally INS v. St. Cyr, 533 U.S. 289, 294-96 (2001). Over the years, the availability of Section 212(c) relief has been of great practical importance as it has permitted a great many aliens who might otherwise have been deported to remain in this country. (Id. at 295-96). In recent years, Congress has amended the INA, most notably through the AEDPA and the IIRIRA, and has limited and ultimately eliminated Section 212(c) relief. (Id. at 297). Relevantly, Section 440(d) of the AEDPA barred review for individuals ordered deported because of a conviction for an aggravated felony, for a drug conviction, for certain weapons or national security violations, and for multiple convictions involving crimes of moral turpitude. Section 440(d), 110 Stat. 1227; St. Cyr, 533 U.S. at 297 n. 7. The St. Cyr decision makes clear — and there is no dispute — that Section 212(c) relief remains available to aliens whose order of deportation was founded on a conviction that was obtained through a guilty plea that was entered prior to the effective dates of the amendments.
There is agreement between the parties in the instant proceedings that petitioner's kidnapping conviction is within the category of offenses set forth in AEDPA Section 440(d).
Insofar as the order of removal to which petitioner is subject is founded on his kidnapping conviction, the relevant date is April 24, 1996, the enactment of the AEDPA. When the instant petition was filed, petitioner stood convicted by the New Jersey Superior Court of kidnapping. This conviction was obtained by virtue of a guilty plea entered on September 23, 1996, which was procured through a plea agreement. It appears on initial examination that the timing of petitioner's guilty plea precludes the availability of Section 212(c) relief. Since this action was commenced, however, petitioner filed a petition for post-conviction relief before the New Jersey Superior Court, raising procedural issues as to his kidnapping plea, which resulted in the vacation of the kidnapping conviction and the entry of a new guilty plea to aggravated assault in the fourth degree. Thus, the relevant inquiry at present is whether the disposition of the state proceedings warrants a reassessment of petitioner's eligibility for Section 212(c) relief.
B. Scope of Jurisdiction over Petitioner's Claim
At the outset, the Court observes that it has jurisdiction pursuant to 28 U.S.C. § 2241 over petitioner's claim that he is eligible to seek Section 212(c) relief because the issue of eligibility raises a pure question of law. St. Cyr, 533 at 308. The petitioner's claim neither challenges the factual determinations underlying the order of removal to which he is subject nor occasions the review of any discretionary decisions of the Attorney General. (Id. at 307-308). Moreover, the recent amendments to the INA did not curtail this Court's jurisdiction over habeas petitions brought pursuant to 28 U.S.C. § 2241. (Id. at 314).
C. Consideration of the Efficacy of Post-Conviction Relief Granted by the New Jersey Superior Court
The instant controversy over Mr. Lim's deportation exists by virtue of the state court's vacation of the underlying kidnapping conviction. This being the case, a threshold issue arises as to whether there is any reason why this Court should not give effect to the state court's action. Generally, a state court's vacation of conviction based on a defendant's plea is recognized as valid in subsequent immigration proceedings. This notion was advanced in Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963), in which the Third Circuit, on review of an order of deportation, rebuffed an argument to the contrary. There, an alien had been charged with being deportable on the basis of a New Jersey state conviction for robbery, which followed from his plea of non vult (i.e.,nolo contendere) before the state court. (Id. at 35). Prior to the immigration hearing, however, the underlying conviction was vacated by the state court. (Id. at 36). On review, the government did not challenge the validity of the state court's action, but rather sought to avoid its consequences relying on an elaborate argument the details of which are not relevant for present purposes. The Third Circuit recognized the efficacy of the vacation of the underlying conviction by the state court, adding that the court's action rendered the conviction a nullity, as if the grand jury had never returned an indictment. Critically, however, the court of appeals specifically observed that in the case before it the government did not contend that the state court "either exceeded its jurisdiction or abused its discretion" in vacating the conviction. (Id. at 37). As a result, the court of appeals deemed the government to have conceded the validity and propriety of the state court's action. Implicit in that discussion is the notion that the government was entitled to attack the legal foundation for the state court's action. It is logical, therefore, to regard Sawkow as supportive of a limited review of the legal basis of a state court's vacation of a conviction from which subsequent deportation proceedings followed.
The state court in Sawkow vacated the conviction pursuant to a New Jersey court rule, which stated:
A motion to withdraw a plea of guilty or of nolo contendere or of non vult, may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the court after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his plea.Sawkow, 314 F.2d at 36. A more concisely phrased but, nonetheless, substantially similar rule was in effect on January 15, 2002, when the New Jersey Superior Court granted Mr. Lim's request for post-conviction relief. R. 3:21-1 ("A motion to withdraw a plea of guilty or non vult shall be made before sentencing, but the court may permit it to be made thereafter to correct manifest injustice.")
Having examined the record of the proceedings on petitioner's request for post-conviction relief, and for the reasons that follow, this Court determines that there was a significantly deficient legal foundation for the state court's vacation of Mr. Lim's kidnapping conviction. Accordingly, the vacation of this conviction will not be given legal effect for the purposes of assessing Mr. Lim's eligibility for Section 212(c) relief.
The state proceedings in question were commenced to consider the merits of Mr. Lim's claim of ineffective assistance of counsel with respect to his guilty plea entered on September 23, 1996. (Order of Sept. 6, 2001, attached as Exh. 13 to the Calcagni Cert.) This claim, which was originally raised in the context of the instant § 2241 Petition, was founded on an allegation that the plea was not entered knowingly and voluntarily. (Petitioner's Letter-Br. of July 17, 2001). More precisely, petitioner argued that he misunderstood the deportation consequences of the plea as demonstrated by the fact that he responded to Plea Form Question No. 17 — "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea?" — by marking the boxes "Yes" and "N/A." (Id.)
Petitioner alleged that his misunderstanding of the immigration consequences of his plea was attributable to his defense counsel. In support of this claim, petitioner's current counsel represented to this Court that Mr. Lim's defense counsel had not "discussed, in depth, the consequences of deportation with Mr. Lim," but that she did read Question No. 17 to him. (Id.) Notably, there was no allegation that defense counsel misrepresented any facts about deportation or provided misinformation. Moreover, there was no suggestion that Mr. Lim, a citizen of Jamaica who spent most of his life in this country, has or had any difficulty reading the plea form, which he executed pursuant to the entry of the plea. It was this claim that this Court order Mr. Lim to pursue before the New Jersey Superior Court on a petition for post-conviction relief, which prompted the original stay of deportation.
As noted above, the New Jersey Superior Court held a hearing on Mr. Lim's petition on January 15, 2002. At the outset of that hearing, the state court indicated that it would vacate the kidnapping conviction pursuant to an arrangement advanced by petitioner's attorney and the state prosecutor. Initially, the court stated its reason for doing so was that "when Mr. Lim entered his original plea of guilty he was not advised that one of the consequences might be deportation, and it's for this reason that the Court today is permitting him to enter this plea." (Calcagni Cert., Exh. 16 at 5:11-15). Critically, this factual assertion appears to have been based not on an evaluation of relevant evidence — considering that no testimony or other evidence was adduced at the hearing — but solely on the state prosecutor's concession. (Id.) In light of the fact that the individual assailing the subject conviction had served his entire sentence, the state prosecutor could not have been viewed to have had any appreciable incentive for contesting this key allegation. Consequently, it was questionable, at the very least, for the state court to have established a critical fact underlying the legal claim before it on the prosecutor's concession.
Furthermore, the state court's generalized finding that Mr. Lim was "not advised" as to the immigration consequences of his guilty plea accounted for neither the fact that Mr. Lim, who reads English, signed a plea form containing Question 17, nor that petitioner alleged that the question was read to him by his defense counsel. On the other hand, there was no allegation that defense counsel affirmatively misinformed petitioner about the deportation consequences of his plea. Rather there have been only the allegations that she did not discuss the subject in depth or that she did not discover and correct Mr. Lim's own erroneous belief that he was indeed a citizen by virtue of his military service. (Petitioner's Letter-Br. of June 17, 2001; Petitioner's Letter-Br. of June 19, 2002, at 3 ("The sole basis of Mr. Lim's ineffective assistance of counsel argument was the failure of prior counsel to adequately advise Lim of the immigration consequences of his plea.") (emphasis added)).
More troubling than its erroneous view of the claimed facts is the state court's failure to conduct any legal analysis whatsoever with respect to the claim at issue. As the following discussion demonstrates, had the state court undertaken an examination of the law, it would surely have discovered that Mr. Lim's claim was without merit. At the outset, petitioner's claim might have been construed as asserting that either the trial court or his defense counsel should have advised him of the deportation consequences of his guilty plea. The law of New Jersey, however, is clear on both points: (1) the court's failure to so advise a defendant about the deportation consequences of a guilty plea does not result in manifest injustice such that withdrawal of a guilty plea would be permitted under R. 3:21-1; and (2) an attorney's failure to so advise does not rise to the level of ineffective assistance of counsel. State v. Chung, 210 N.J. Super. 427, 432, 434-35 (App.Div. 1986) (citingStrickland v. Washington, 466 U.S. 668 (1984)) (finding that neither the court nor counsel has an obligation to advise defendant about deportation consequences of a guilty plea); State v. Reid, 148 N.J. Super. 263, 267 (App.Div. 1977) (denying relief where the only reason advanced in support of vacation of plea was defendant's lack of understanding of the immigration consequences of the plea); State v. Vieira, 334 N.J. Super. 681, 687 (Law Div. 2000). The essential reason for this rule is that deportation ramifications are deemed collateral consequences, not penal consequences of a guilty plea. While the categorization of penal consequences, on the one hand, and collateral consequences, on the other, may be seen as producing harsh results when deportation is the result of a guilty plea, the prevailing view of the New Jersey courts is that this distinction is the benchmark for adjudicating procedural claims that seek withdrawal of a guilty plea.State v. Garcia, 320 N.J. Super. 332 (App.Div. 1999) (discussing opposing viewpoints with respect to penal/collateral distinction, and recognizing the validity of categorization of immigration consequences as collateral) (citing State v. Heitzman, 107 N.J. 603 (1987)). The case law is clear that an attorney's failure to consult or advise his client with respect to deportation consequences of a guilty plea, without more, will not give rise to a claim of ineffective assistance of counsel. Garcia, 320 N.J. Super. at 338; Chung, 210 N.J. Super. at 435 (finding that in the absence of actual misrepresentation by counsel defendant could not p0revail on a claim under Strickland v. Washington, 466 U.S. 668 (1984));Vieira, 334 N.J. Super. at 687.
The main cases cited by petitioner, State v. Garcia and State v. Vieira, avail him nothing. First, both cases, which involved post-conviction attacks by defendants of their guilty pleas prompted by the immigration consequences produced by the same, support the view that immigration-related effects of a guilty plea are collateral rather than penal consequences. Furthermore, although the defendants in both cases could be said to have prevailed, the decisions turned on facts that are not present in the instant case. For instance, in Garcia the Appellate Division ruled that an evidentiary hearing was required in order to determine whether a defendant received ineffective assistance of counsel in connection with his entry of a guilty plea. Garcia, 320 N.J. Super. at 341. Critical to the result in that case was the defendant's claim that he received misinformation from his attorney concerning whether deportation was possible if he pled guilty. (Id. at 338)
Similarly, in Vieira, the court compared the defendant's claim to those involving actual misinformation provided by defense counsel. In that case, the defendant, a resident alien who had difficulty reading English, pleaded guilty to a state crime that later subjected him to deportation. Vieira, 334 N.J. Super. at 683. A petition for post-conviction relief was subsequently filed. In the proceedings that followed, defense counsel admitted that she completed the plea form on her client's behalf and marked "N/A" in response to Question 17. It was further established that the defendant did not read the form, it was not read to him, and no one discussed deportation with the defendant. (Id. at 684). The defendant alleged that his attorney was ineffective because she assumed that the defendant read the plea form containing the deportation question and assumed that he was a U.S. citizen, even though he disclosed that he was not a citizen of this country in court documents that counsel should have read. Citing cases in which withdrawal of a guilty plea was permitted based on actual misrepresentations by counsel, the court granted relief, expressly relying on both the incorrect assumptions of the attorney as to defendant's immigration status and "the fact that the defendant said during the taking of the plea that he had difficulty reading and writing English and the defense attorney knew she did not go over the plea form with defendant. . . ." (Id. at 687-88). The Vieira court summarized its holding as follows:
While deportation may not be a penal consequence and counsel is not obligated to make specific inquiry as to the residency status of a defendant, when a defendant previously discloses that he is a resident alien, the knowledge is imputed to defense counsel and the defendant discloses in open court that he has problems reading and writing English, counsel's performance is constitutionally deficient if the attorney does not address the issue of deportation with the defendant and the defendant is not aware of the risk of deportation.
(Id. at 688). Turning back to the matter at hand, as discussed above, Mr. Lim's claim involves neither an allegation of actual misrepresentation by counsel nor one of language difficulties. Based on factual distinctions, the cases cited by petitioner do not support his claim. In sum, had the state court measured Mr. Lim's allegations against the case law it would have discovered that the petition for post-conviction relief did not state a cognizable claim supporting vacation of the kidnapping conviction.
The foregoing suggests that, in accommodating the proposed plea arrangement, the state court acted not on the basis of a meritorious claim of ineffective assistance of counsel, but for some other reason. This suggestion is confirmed by the substance of the hearing itself and the court's own admission. As has been observed, there was at the hearing no presentation of evidence or significant argument relating to the deportation-consequences issue. Instead, the hearing was marked by a lengthy presentation by counsel relating to Mr. Lim's current deportation plight. Following the comments of Mr. Lim's counsel, and in conflict with the basis for relief stated at the outset of the hearing, the state judge stated:
Mr. Lim, the Court can tell you that the Court in these circumstances is most reluctant to grant such an application but it believes that in your case the reasons are obvious and that the reason that you are here is simply because this matter was not disposed of in a timely fashion. Had this matter been moved more promptly to conclusion . . . you would not be detained today by the Immigration and Naturalization authorities.
For that reason the Court is vacating the prior judgment that was entered.
(Tr. at 16:1-15). These remarks unmistakably show that the state court vacated the kidnapping conviction out of concern for Mr. Lim's immigration plight, not because there was any merit in his collateral attack on the kidnapping charge. While in the past it may have been appropriate to consider a state court's view that a convicted defendant should not be deported, this is no longer the case. In 1990, Congress amended the INA to eliminate such judicial recommendations against deportation. Immigration Act of 1990, Pub.L. No. 101-649, § 505. 104 Stat. 4978 (1990); Domond v. INS, 244 F.3d 81, 87 (2d Cir. 2001); U.S. v. Koziel, 954 F.2d 831, 832 (2d Cir. 1992). As a result, current federal law does not permit the consideration of state court recommendations on the propriety of deportation. Moreover, New Jersey appellate courts have acknowledged generally the inappropriateness of interfering with immigration matters. Se Chung, 210 N.J. at 441 (avoiding appearance of "unwarranted meddling in federal immigration matters" by affirming the denial of deportable alien's motion to vacate state conviction so that he might avoid deportation.)
The 1990 Act eliminated the following text from the INA, in relevant part:
if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter.8 U.S.C. § 1251(b)(2) (1990) (repealed 1990).
In sum, it is apparent that the petition for post-conviction relief that was pursued in this case was not used to test the merit of Mr. Lim's claim of ineffective assistance of counsel but rather as a vehicle to engineer a result that would benefit petitioner in proceedings before the INS or this Court, or both. Therefore, it would be inappropriate to accept the state court's vacation of Mr. Lim's kidnapping conviction as basis for a reevaluation of his eligibility for Section 212(c) relief. As far as the instant proceedings are concerned, the kidnapping plea stands as though no petition for post-conviction relief were sought. There being no cause to reassess the date of conviction, the Court determines that petitioner is ineligible to seek a discretionary waiver of inadmissibility under former INA Section 212(c) because he pleaded guilty and was convicted of kidnapping, which the INS found to be an aggravated felony under 8 U.S.C. § 1227(2)(A)(iii), after the elimination of Section 212(c) relief as to him. As such, petitioner could not have had a settled expectation that Section 212(c) would be available to him. St. Cyr, 533 U.S. At 323-34.
C. The Aggravated Assault Conviction
Even if the Court were to conclude that the kidnapping conviction was validly set aside and that it must measure Mr. Lim's eligibility for Section 212(c) consideration against his subsequent plea of guilty to aggravated assault, the government's motion to lift the stay of deportation must be granted. Proceedings before the Superior Court of New Jersey on January 15, 2002 do not support petitioner's position on this issue.
To say that this Court is displeased with the conduct of Mr. Lim's counsel before the Superior Court is an understatement. Playing to the interests of that court and its prosecutor, he contrived a fictional disposition in that forum as a means to subvert federal statutes. Confronting a prosecutor with a motion to void a guilty plea, counsel negotiated a plea to a lesser charge in the original indictment which would both result in a sentence of time served and generate for Mr. Lim an argument that that aggravated assault conviction might not be considered an aggravated felony under Section 440(d), thus generating Section 212(c) eligibility. If that were all, there would be little to criticize, and this Court could have addressed the latter argument. However, both the charge in state count V and the facts regarding Mr. Lim's actions demonstrate that the aggravated assault charge would be considered an aggravated felony. Therefore, his counsel took the next step: the generation of the fictional date of March 18, 1996 as the effective date of Mr. Lim's new plea of guilty which, of course, was actually entered on January 15, 2002. The selection of this date would (he hoped) be considered conclusive and thus be of great benefit to Mr. Lim before this federal court. That date also was of no consequence to either the county prosecutor or the judge of the Superior Court. It was no price for the State of New Jersey to pay in order to secure a new plea agreement which would avoid the reopening of Mr. Lim's criminal case through the collateral attack on his original plea of guilty. Overstating the federal consequences of the new plea arrangement, counsel even said to the state judge, ". . . at the time of the event he would not have been deported but Congress changed the law in 1996 to make it mandatory that he would be deported to Jamaica." (Calcagni Cert., Exh. 16, Tr. Jan. 15 2002 at 12:12-15). of course, Mr. Lim could still have been deported during the time period when Section 212(c) was in effect, had the Attorney General chosen not to exercise his discretion in favor of this twice-convicted felon.
The contrived manipulation completed, Mr. Lim and his counsel now return to this Court (after being denied relief by the BIA) and assert that the new state judgment of conviction (and particularly its fictitious date) is preclusive; therefore, Section 212(c) is available to the petitioner. Not so! First, for the reasons accurately and adequately stated in the government's Letter-Memorandum of June 21, 2002, the aggravated assault charge to which Mr. Lim pleaded guilty on January 15, 2002 is an aggravated felony within the contemplation of federal immigration/deportation laws. (Id. at 3-4). Second, the fictitious date of March 18, 1996 has no basis either in fact or law. The earliest date of record which might attach to that second guilty plea is September 23, 1996, the date of Mr. Lim's plea to the kidnapping charge. The actual date of that second guilty plea was, of course, January 15, 2002. Under either date, because the conviction for aggravated assault is one for an aggravated felony, Section 212(c) relief is not available to the petitioner.
CONCLUSION
Whether based upon the conviction for kidnapping or the later conviction for aggravated assault, for the reasons stated above, petitioner has failed to establish any eligibility for discretionary relief under Section 212(c) of the INA. Therefore, the stay of deportation entered by this Court to permit petitioner to conduct proceedings before the Superior Court of New Jersey, the BIA and this Court will be vacated, effective August 15, 2002.