Opinion
C.A. No. 03-430 T
March 22, 2004
Report and Recommendation
Maria Joao Dacosta Tavares Reis ("Reis" or "petitioner"), pro se, filed with the Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging an order of removal issued by the Department of Homeland Security, Bureau of Immigration and Customs Enforcement. The United States ("government") has moved to dismiss the petition, Reis has objected. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that the government's motion to dismiss be granted.
Background
Maria Joao Dacosta Tavares Reis, a lawful permanent resident, was admitted to this country as an immigrant from Portugal on August 10, 1969. Prior to her current detention, Reis resided in Providence, Rhode Island. Reis was married to a U.S. citizen for sixteen years; she has three children who are U.S. citizens.
Reis also has a criminal record. On April 5, 1982, she was convicted of possession of marijuana with intent to deliver. On April 24, 1991 and again on June 11, 1996, Reis was convicted of possession of cocaine. On November 2, 1999 and on January 11, 2000, she was convicted of loitering for the purpose of prostitution. In June 2002, Reis was again convicted of loitering for prostitution. Also noteworthy, petitioner has a history of mental illness and frequent drug abuse.
On July 5, 1990, the then Immigration and Naturalization Service, now the Department of Homeland Security (hereinafter referred to as "DHS"), commenced deportation proceedings against Reis. The DHS contended that Reis was removable under former § 241(a)(11) of the Immigration and Nationality Act ("INA") for having been convicted of a controlled substance violation (1982 possession with intent to deliver marijuana conviction). After some delays due to her incarceration, the immigration hearings commenced, at which Reis admitted the allegations set forth by the DHS and sought a § 212(c) waiver of deportation. The DHS then lodged an additional removal charge, namely, that Reis was removable for having been convicted of an aggravated felony (the 1991 possession of cocaine conviction) under former § 241(a)(2)(A)(iii) of the INA. The Immigration Judge ("IJ") conducted a hearing on Reis' § 212(c) application and granted her relief. The DHS did not appeal.
On February 28, 2000, after learning of her arrests for loitering for prostitution, the DHS lodged additional removal charges against Reis. The DHS alleged that Reis was removable pursuant to INA § 237(a)(2)(A)(ii), for having been convicted of two crimes involving moral turpitude (November 2, 1999 and January 11, 2000 loitering for prostitution convictions), INA § 237(a)(2)(B)(1), for having been convicted of a controlled substance violation (1996 possession of cocaine conviction), and INA § 237(a)(2)(A)(iii) for having been convicted of an aggravated felony (1996 possession of cocaine conviction). At the immigration hearings that followed on March 8, 2001, Reis admitted the allegations alleged by DHS and conceded she was removable as charged. Accordingly, the IJ issued an order of removal. Reis did not appeal the decision. Reis did however seek a stay of removal from the District Director of the DHS. The request was granted and her removal was stayed until March 26, 2002.
The DHS released Reis from custody on June 8, 2001 with several conditions, including that she not violate any state laws, that she file monthly reports with the DHS, and that she provide the DHS evidence of her sobriety and mental health counseling. Reis did not comply with these conditions. She was convicted in June 2002 of loitering for prostitution and she also failed to provided the DHS evidence that she had participated in mental health counseling. The DHS thereafter detained Reis pending her removal. On August 22, 2002, the DHS granted Reis an additional stay of removal until August 23, 2003. No further stays have been requested, and Reis remains in custody pending her removal.
Reis has filed the instant petition for federal habeas relief. In the petition, Reis claims (1) she is eligible for relief pursuant to § 212(h) of the INA, (2) the retroactive effect of § 212(h) of the INA violates the due process clause, and (3) § 212(h) of the INA violates the equal protection clause. The government has moved to dismiss the petition. Reis has objected.
Discussion
I. Statutory Claim.As her first basis for federal habeas relief, Reis claims that she is entitled to a § 212(h) waiver, codified at 8 U.S.C. § 1182(h). The government has moved to dismiss this claim on two grounds. First, the government contends that Reis has failed to exhaust her administrative remedies with respect to this claim. Second, the government contends that, notwithstanding her lack of exhaustion, Reis is not entitled to Section 212(h) relief.
(A) Reis has Failed to Exhaust her Administrative Remedies.
It is well settled that a federal prisoner must exhaust administrative remedies before seeking habeas corpus relief in the district courts.U.S, ex rel. Chung v. Thornburgh, 749 F. Supp. 93 (S.D.N.Y. 1990). A challenge to agency action, or inaction, in the federal courts must occur after the issue has been presented to the agency. This exhaustion requirement applies to immigration cases. Ravindran v. INS. 976 F.2d 754, 761 (1st Cir. 1992); Athehortua-Vaneoas v. INS, 876 F.2d 238, 240 (1st Cir. 1989).
Here, it is undisputed that Reis never presented an application for Section 212(h) waiver to the Immigration Judge, the Board of Immigration Appeals, or any other immigration official. Because she can raise her claim for § 212(h) relief with immigration officials, but has not, petitioner has failed to exhaust her administrative remedies. See Ravindran. 976 F.2d at 761. Accordingly, Reis' claim that she is entitled to § 212(h) relief should be dismissed.
(B) Reis is Not Eligible for Section 212(h) Waiver.
Notwithstanding the lack of exhaustion, petitioner's Section 212(h) claim is without merit. Section 212(h) provides for a waiver of inadmissibility for certain aliens. See 8 U.S.C. § 1182(h). This waiver is only available for aliens who have been convicted of a drug-crime if the conviction is for a single offense of simple possession of marijuana of 30 grams or less. Id.; See also Gonzalez-Polanco. v. INS, 2002 WL 1796834 (S.D.N.Y. 2002). Here, Reis' convictions are far more severe than a simple possession of marijuana. Reis has been convicted of possession of marijuana with intent to deliver, and she has been twice convicted of possession of cocaine. Consequently, Reis is not statutorily eligible for a Section 212(h) waiver due to any one of these three convictions.
Furthermore, Section 212(h) prohibits a lawful permanent resident, such as Reis, from receiving a waiver if she has been convicted of an aggravated felony. See 8 U.S.C. § 1182(h); See also Alvarez-Garcia v. INS. 234 F. Supp.2d 283 (S.D.N.Y. 2002). It is undisputed that Reis admitted in her second round of immigration hearings on March 8, 2001 that she has been convicted of an aggravated felony. Because she is a lawful permanent resident convicted of an aggravated felony, Reis is statutorily ineligible for a Section 212(h) waiver.
Here, Reis has failed to exhaust her administrative remedies with respect to her claim that she is eligible for a Section 212(h) waiver. Notwithstanding her failure to exhaust her administrative remedies, she is nonetheless ineligible for relief pursuant to Section 212(h) of the INA. Accordingly, Reis' first claim that she is entitled to a Section 212(h) waiver is without merit and should be dismissed. I so recommend.
II. Constitutional Claims.
As her next basis for federal habeas relief, Reis attempts to challenge, on constitutional grounds, the current Section 212(h) of the INA. Prior to 1996, the Attorney General had discretion to grant a Section 212(h) waiver to aliens except those who had committed certain offenses. Section 212(h) provided, in part:
No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted to committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture. See 8 U.S.C. § 1182(h)(1995) (amended September 1996) ("pre-IIRIRA § 212(h)").
In September 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") and amended § 212(h). Section 212(h), in current form, precludes relief for a lawful permanent resident ("LPR") who has committed an aggravated felony. See, e.g.,Jankowski-Burczyk v. INS, 291 F.3d 172 (2nd Cir. 2002). Section 212(h) now provides, in part:
No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if . . . since the date of such admission the alien has been convicted of an aggravated felony. . . . 8 U.S.C. § 1182(h) ("current § 212(h)").
Reis first contends that the current § 212(h) violates the due process clause because it has an impermissible retroactive effect since it removes § 212(h) relief for LPRs with an aggravated felony conviction that occurred prior to the IIRIRA's enactment. Next, Reis contends that even if the retroactive effect of the current § 212(h) is not impermissible, the distinction created between LPRs and non-LPRs violates the equal protection clause. However, Reis does not have standing to bring such claims. I will explain.
Both the pre-IIRIRA § 212(h) and the current § 212(h) provide that the Attorney General may, in his discretion, waive the inadmissibility of certain criminal aliens. See 8 U.S.C. § 1182(h) (both versions). However, both versions of Section 212(h) limit the discretion of the Attorney General in a significant way that Reis has neglected to realize or mention. Both prohibit aliens who have been convicted of any drug offense, except simple possession of 30 grams or less of marijuana, from § 212(h) relief. See 8 U.S.C. § 1182(h) (both versions) and 8 U.S.C. § 1182(a)(2)(A)(i)(ll) (both versions). Thus, Reis's 1996 conviction for possession of cocaine renders her ineligible for relief under either version of § 212(h). Section 212(h), pre-IIRIRA and now, flatly prohibits relief to aliens convicted of drug crimes, such as the petitioner's.
Thus, this court need not address the constitutional challenges that Reis makes since under either version of § 212(h) she would be ineligible for the relief she seeks. In other words, she does not have standing to bring her instant constitutional claims since she cannot demonstrate that a favorable ruling will provide her redress. See, e.g.,Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61 (1992) (A party attempting to invoke federal jurisdiction must establish that (1) she has suffered an injury in fact (2)the injury was caused by the challenged action, and (3) a favorable ruling would likely redress her injury).
Since Reis would not qualify for § 212(h) relief if she were successful on either her due process or equal protection claims, Reis does not have standing to bring such claims. Accordingly, the government's motion to dismiss should be granted on Reis' constitutional claims. I so recommend.
Conclusion
For the reasons set forth above, I recommend that the government's motion to dismiss be granted. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).