Opinion
Case No. 00 C 2928
July 16, 2002
ORDER
Petitioner Victor M. Lopez-Moreno was convicted on a state drug trafficking charge on March 24, 1993, and was sentenced to thirty-eight years of incarceration. On the basis of that conviction, an immigration judge entered a final order of deportation on July 17, 1998, which is the focus of the present habeas petition. Currently pending are Lopez-Moreno's motion for appointment of counsel and the government's motion to dismiss.
"Whenever . . . the court determines that the interests of justice so require, representation may be provided for any financially eligible person who . . . is seeking relief under section 2241, 2254, or 2255 of title 28." 18 U.S.C. § 3006A(a)(2)(B). The Seventh Circuit has explained that counsel must be appointed under this statute "if, given the difficulty of the case and the litigant's ability, [movant] could not obtain justice without an attorney, [he] could not obtain a lawyer on [his] own, and [he] would have had a reasonable chance of winning with a lawyer at [his] side." Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997) (quoting Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997)). Because Lopez-Moreno will only be prejudiced by the absence of counsel if he has a potentially meritorious claim and because the motion to dismiss is already fully briefed, the court will first consider whether the government has demonstrated that Lopez-Moreno has no reasonable chance of success.
Lopez-Moreno remains in the custody of the Illinois Department of Corrections. The government suggests that this custody is exclusive, claiming that Lopez-Moreno is not in INS custody. If that were true, this court would lack jurisdiction. A district court has jurisdiction over a federal petition for a writ of habeas corpus only if the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); see also Maleng v. Cook, 490 U.S. 488, 490-91 (1989). But future custody can be sufficient to support habeas jurisdiction. "However labeled, an action that has as part of its effect the `holding' of a prisoner for a future custodian who has evidenced an intent to retake or to decide the prisoner's future status at the end of his or her current confinement serves to establish custody for habeas purposes." Vargas v. Swan, 854 F.2d 1028, 1032 (7th Cir. 1988). A final order of deportation plus a detainer suffices to evidence the requisite intent. See Setharatsomphou v. Reno, No. 98 C 7076, 1999 U.S. Dist. LEXIS 14839, at *10-14 (N.D.Ill. Sept. 2, 1999). The INS issued a detainer in December 1993 and Lopez-Moreno is subject to a final deportation order. In addition, the INS has stated in no uncertain terms that it will take custody of Lopez-Moreno when his state sentence is completed. He is therefore in INS custody for habeas purposes.
This explains why the government frames its argument in terms of ripeness rather than in terms of jurisdiction. Because Lopez-Moreno will be held directly by the state rather than by the INS for almost thirty more years and there is no chance of deportation until then, the government argues, his petition is not ripe. However, there is no guarantee that Lopez-Moreno will serve out his full sentence and eventual deportation appears to be inevitable. The legal issues are clearly defined and nothing will be gained by delaying resolution of the case. This court will therefore consider the potential merits of the petition.
In its reply brief, the government wisely abandons its other subject-matter jurisdiction arguments. Suffice it to say that reports of the death of habeas jurisdiction in immigration cases have been greatly exaggerated. See INS v. St. Cyr, 533 U.S. 289, 298-314 (2001) (holding that recent immigration legislation did not repeal habeas jurisdiction).
Lopez-Moreno argues that his rights to due process and equal protection were violated when the immigration judge in the hearing on July 17, 1998 denied him an opportunity to apply for a discretionary waiver under Immigration and Nationality Act ("INA") § 212(c), 8 U.S.C.S. § 1182(c) (Law. Co-op. 1995). Although § 212(c) (since repealed) was literally applicable only to exclusion proceedings, it has been interpreted by the Board of Immigration Appeals (BIA) to apply to deportation proceedings as well. See INS v. St. Cyr, 533 U.S. 289, 295 (2001). "If relief is granted, the deportation proceeding is terminated and the alien remains a permanent resident." Id. Prior to April 24, 1996, this section provided that the Attorney General could provide discretionary relief for aliens subject to deportation for criminal violations, unless the alien "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.S. § 1182(c) (Law. Co-op. 1995). The term aggravated felony was (and still is) defined to include drug trafficking offenses. Id. § 1101(a)(43)(B); accord 8 U.S.C.A. § 1101(a)(43)(B) (West 1999). The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, § 440(d), closed this avenue to any alien convicted of an aggravated felony or a controlled substance offense (other than minor marijuana possession). The Immigration Judge applied the AEDPA restriction and denied Lopez-Moreno's plea for a discretionary waiver under § 212(c) because he had been convicted of an aggravated felony. Lopez-Moreno argues that applying the new AEDPA eligibility standards to his pre-AEDPA conviction is impermissibly retroactive.
Effective April 1, 1997, Congress eliminated § 212(c) entirely. See Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, § 204(b) (codified at 8 U.S.C. § 1229b). The new cancellation of removal provision likewise excludes aliens convicted of aggravated felonies. 8 U.S.C. § 1229b(a)(3).
The critical defect with Lopez-Moreno's retroactivity argument is that he was ineligible for a § 212(c) waiver at the time of his deportation hearing even under pre-AEDPA law because he had served more than five years in prison pursuant to the drug trafficking conviction. His real complaint is therefore with the delay between his conviction and his deportation hearing. By waiting more than five years before holding the hearing, it would appear that the government foreclosed the possibility of § 212(c) relief under the law in effect at the time Lopez-Moreno committed the offense and was convicted. See 8 C.F.R. § 242.17(e) (1994) (application for § 212(c) relief "shall be made only during the [deportation] hearing"). But appearances sometimes deceive. The Second Circuit has suggested 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." Giusto v. INS, 9 F.3d 8, 10 (2d Cir. 1993). Under this view, Lopez-Moreno was not eligible for a § 212(c) waiver even before he had served five years of his sentence.
But see United States v. Ben Zvi, 242 F.3d 89, 99 (2d Cir. 2001) (stating that availability of § 212(c) waiver for alien convicted of aggravated felony "turns not on the sentence imposed but on the period of actual incarceration").
The Second Circuit's suggestion, however, is difficult to reconcile with the statutory text: Congress said "served" not "sentenced." 8 U.S.C.S. § 1182(c) (Law. Co-op. 1995); accord Archibald v. INS, Civ. No. 02-0722, 2002 U.S. Dist. LEXIS 11963, at *17-18 (E.D.Pa. July 1, 2002). Assuming that the government's delay actually rendered Lopez-Moreno ineligible for a § 212(c) waiver, the question is whether Lopez-Moreno may have a cognizable claim on this basis. Until 1996, another section of the INA provided that "in the case of an alien who is convicted of an offense which makes the alien subject to deportation, the Attorney General shall begin any deportation proceeding as expeditiously as possible after the date of the conviction." Id. § 1252(i). However, this provision created no private remedy. Aguirre v. Meese, 930 F.2d 1292, 1293 (7th Cir. 1991) (per curiam). Neither does Lopez-Moreno have any due process right to a timely hearing. See Padron-Baez v. Warden, FCI, Fairton, No. 95-320, 1995 U.S. Dist. LEXIS 9943, at *21 (D.N.J. July 10, 1995) (stating that "an excludable alien has no right — constitutional, statutory, regulatory, or otherwise — to a timely exclusion hearing").
Lopez-Moreno's most interesting argument is based on equal protection. Generally speaking, "[a] statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it." Metro. Cas. Ins. Co. v. Brownell, 294 U.S. 580, 584 (1935). Congress added the relevant statutory language to § 212(c) in 1990 as part of an effort to "broaden the list of serious crimes, conviction of which results in various disabilities and preclusion of benefits under the Immigration and Nationality Act." H.R. Conf. Rep. No. 955, at 132, 101st Cong., 2d Sess., reprinted in 1990 U.S.C.C.A.N. 6784, 6797. Classifying a crime as "serious" based on the time actually served rather than on the sentence imposed makes sense in a federal system, where early release practices vary across jurisdictions.
A six-year sentence in one state may guarantee six years in prison, whereas in another state parole after three may be the norm. The amount of resources a state is willing to spend to imprison a criminal is perhaps the most objective measure of how serious the state believes his crime to be. For individuals like Lopez-Moreno, who end up serving more than five years, the timing of the deportation hearing may seem an irrational basis for determining eligibility to apply for a § 212(c) waiver. But the rationality of § 212(c) must be determined without the benefit of hindsight as to the sentence actually served. Before year five, there was some chance, albeit remote, that Lopez-Moreno would end up serving less than five years — a pardon, at least, was possible. Congress could rationally decide that felons like Lopez-Moreno should remain eligible for § 212(c) relief unless and until the state actually invests the resources to keep them in prison for five years. Lopez-Moreno's equal protection argument, while intriguing, ultimately fails.
No doubt the Attorney General considers the length of the sentence in exercising his discretion and routinely denies such relief to individuals with very long sentences. But the issue here is eligibility to apply for a waiver, not whether the waiver eventually would be granted. See St. Cyr, 533 U.S. at 325 ("There is a clear difference . . . between facing possible deportation and facing certain deportation.").
Ironically, the equal protection argument arises here only because courts held that applying § 212(c) to exclusion, but not to deportation, proceedings would violate equal protection and therefore interpreted the statute to apply to both. See, e.g., Francis v. INS, 532 F.2d 268, 272-73 (2d Cir. 1976). No alien attempts to reenter the country while in prison. That Congress added the "has served" language after the applicability of § 212(c) to deportation proceedings was well-established supports the notion that Congress chose these words deliberately and may have adopted the rationale outlined in the text.
Because Lopez-Moreno's petition has no reasonable chance of success, his motion for appointment of counsel is denied and the government's motion to dismiss is granted.
A final note: although estoppel and laches may theoretically be available against the government, see INS v. Miranda, 459 U.S. 14, 19 (1982) (per curiam) (estoppel); United States v. Admin. Enters., 46 F.3d 670, 672-73 (7th Cir. 1995) (laches), neither theory is applicable here. See, e.g., Saywack v. Attorney Gen. of United States, No. 91 Civ. 7797, 1993 U.S. Dist. LEXIS 7779, at *15-18 (S.D.N.Y. June 8, 1993) (rejecting estoppel argument on analogous facts).