Opinion
98 Civ. 6840 (JGK).
July 8, 2003.
OPINION AND ORDER
The petitioner, Jose Arturo Reyes, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petitioner challenges his order of deportation on the ground that the petitioner should have been permitted to seek a discretionary waiver of deportation pursuant to former Section 212(c) of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1182(c) (repealed by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), § 304(b), Pub.L. No. 104-28, 1996 U.S.C.C.A.N. (110 Stat.) 3009, 3009-597 (1996)). The petitioner claims that he was wrongly denied this relief because Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, 1277 (1996), was applied to him retroactively.
I.
The petitioner, a native and citizen of the Dominican Republic, was admitted to the United States on July 20, 1984 as an immigrant. (Certified Administrative Record ("R.") at 85, 87.) Reyes was found guilty in the United States District Court for the Southern District of New York of conspiring to distribute a controlled substance in violation of 21 U.S.C. § 846, and distributing and possessing with intent to distribute a controlled substance in violation of 21 U.S.C. § 812, 841(a) (1), 841(b)(1)(B), and 841(b)(1)(C) and 18 U.S.C. § 2. (R. at 54.) Reyes was sentenced on September 27, 1988 to a term of ten years' imprisonment on three counts to run concurrently, followed by six years of supervised release. (R. at 55-57.) The petitioner was delivered to the Federal Correctional Institute at Ray Brook, New York on October 17, 1988 with credit for time served in federal custody in connection with the charges for which he had been convicted. (R. at 55.)
The Immigration and Naturalization Service ("INS") served Reyes with an order to show cause and notice of hearing at the Federal Correctional Institute in Oakdale, Louisiana on January 3, 1997. (R. at 85-91.) The order to show cause alleged that Reyes was deportable from the United States pursuant to Section 241(a)(2)(A) (iii) of the INA as an alien convicted of an aggravated felony as defined by Section 101(a)(43) of the Act, and Section 241(a)(2)(B)(i) of the INA as an alien convicted of a controlled substance offense. (R. at 90.)
Immigration proceedings commenced before an immigration judge ("IJ") on February 5, 1997 at the Federal Correctional Institute in Oakdale, Louisiana but were adjourned so that Reyes could obtain counsel. (R. at 34-37.) Counsel for Reyes subsequently filed a motion to change venue to New York on March 12, 1997 which was granted on March 19, 1997. (R. at 58-59, 74-75.) When proceedings resumed in New York on September 16, 1997, the IJ adjourned the matter so that the petitioner could obtain new counsel. (R. at 38-42.) On October 28, 1997, the petitioner, through counsel, admitted to having been convicted of a controlled substance violation but denied having been convicted of an aggravated felony. (R. at 46-48.)
The IJ issued an oral opinion on October 28, 1997 finding Reyes deportable as an alien who had been convicted of a controlled substance offense. (R. at 29, 32-33.) The IJ rejected the INS' contention that Reyes was deportable as an alien convicted of an aggravated felony, however, because Reyes's conviction occurred prior to November 1988 when immigration laws were changed to allow for deportation on the basis of such a conviction. (R. at 29, 31-32.) The IJ also pretermitted Reyes's application for discretionary relief from deportation pursuant to Section 212(c) of the INA on the ground that AEDPA Section 440(d) and the Attorney General's interim decision in Matter of Soriano, Int. Dec. No. 3289, 1996 WL 426888 (Att'y Gen. Feb. 21, 1997), rendered Reyes ineligible for such relief as an alien convicted an aggravated felony or a controlled substance violation. (R. at 29, 32.) The IJ also noted that Section 212(c) relief had been abolished altogether in 1996. (R. at 32.)
Reyes appealed the IJ's decision to the Board of Immigration Appeals ("BIA") on November 14, 1997, arguing that the IJ had wrongly pretermitted Reyes's application for Section 212(c) relief by retroactively applying Section 440(d) of AEDPA. (R. at 11-22.) The BIA dismissed Reyes's appeal on August 28, 1998 and found that there was no impermissible retroactive effect in applying Section 440(d) of AEDPA which rendered Reyes statutorily ineligible for Section 212(c) relief. (R. at 2-3.) Reyes filed a petition for a writ of habeas corpus on September 28, 1998. The petition was subsequently placed on the Court's suspense docket pending the decision of the Second Circuit Court of Appeals in Henderson v. INS, 157 F.3d 106 (2d Cir. 1998) and the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001) (hereinafter St. Cyr II). After filing this petition, Reyes filed a motion to reopen his administrative proceedings with the BIA which the BIA denied on November 9, 2000. (BIA Denial of Motion to Reopen ("BIA Denial") attached as Ex. B to Return.) The BIA found, among other things, that Reyes was not within the scope of Henderson, which held that Section 440(d) did not apply to petitioners whose deportation proceedings were pending at the time of AEDPA's enactment, because Reyes's proceedings did not begin until 1997. (BIA Denial at 2.) The BIA also held that Reyes was not entitled to Section 212(c) relief under the decision of the Second Circuit Court of Appeals in St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000) (hereinafter St. Cyr I), aff'd, 533 U.S. 289 (2001), which held that Section 212(c) relief remained available to aliens who pleaded guilty to a crime prior to the enactment of AEDPA or IIRIRA, because the petitioner had been found guilty by a jury rather than pursuant to a plea of guilty.
II.
Reyes challenges his order of deportation on the ground that he should have been permitted to seek a discretionary waiver of deportation pursuant to former Section 212(c) of the INA. The BIA has dismissed the petitioner's appeal from the order of deportation, and thus Reyes has exhausted his administrative remedies and the habeas petition is properly before this Court. In addition, this Court retains jurisdiction under 28 U.S.C. § 2241 to review the legal claims against a final order of deportation raised by an alien subject to deportation by reason of having committed a criminal offense. See St. Cyr, 533 U.S. at 314.
Former Section 212(c) provided:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General. . . . [T]his subsection shall not apply to 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). Although Section 212(c) by its terms applies to residents returning from temporary departures abroad, it has long been interpreted to apply to lawful permanent residents who have not left the United States but who face deportation. See St. Cyr, 533 U.S. at 295; Bedoya-Valencia v. INS, 6 F.3d 891, 895-98 (2d Cir. 1993); Francis v. INS, 532 F.3d 268, 273 (2d Cir. 1976); Copes v. McElroy, No. 98 Civ. 2589, 2001 WL 830673, at *3 (S.D.N.Y. 2001). The decision whether to grant relief from deportation is left to the discretion of the Attorney General or his delegates. See 8 U.S.C. § 1182(c); Rankine v. Reno, 319 F.3d 93, 95 (2d Cir. 2003), reh'g denied, Nos. 01-2135, 01-2483, 00-2631, (2d Cir. Apr. 21, 2003); St. Cyr I, 229 F.3d at 410.
On April 24, 1996 Congress enacted AEDPA and Section 440(d) of the statute precluded aliens who were convicted of committing controlled substance or aggravated felonies regardless of the length of imprisonment from obtaining Section 212(c) relief.See AEDPA § 440(d), 110 Stat. at 1277; St. Cyr I, 229 F.3d at 411. One of Congress's goals in enacting the statute was to increase the number of deportable criminal aliens. See Domond v. INS, 244 F.3d 81, 84 (2d Cir. 2001); St. Cyr I, 229 F.3d at 411. Former Section 212(c) was subsequently repealed by IIRIRA Section 304(b) in 1996 and was replaced by a form of relief entitled "cancellation of removal," codified at 8 U.S.C. § 1229b. IIRIRA, 1996 U.S.C.C.A.N. (110 Stat) at 3009-597;Domond, 244 F.3d at 84.
The petitioner argues that under the Supreme Court's holding in St. Cyr II, the IJ and the BIA impermissibly denied him Section 212(c) relief from deportation by applying Section 440(d) of AEDPA retroactively. In St. Cyr II, the Supreme Court held that Section 212(c) relief "remains available for aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." Id. at 326. The Supreme Court found that "[t]here can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions." Id. at 322. Thus, the Court held, because the respondent in St. Cyr II and other aliens like him "almost certainly relied upon [the significant likelihood of receiving Section 212(c) relief prior to the enactment of AEDPA and IIRIRA] in deciding whether to forgo their right to a trial, the elimination of any possibility of § 212(c) relief . . . has an obvious severe retroactive effect." Id. at 325.
Reyes was ordered deported pursuant to his conviction by a jury for violating a controlled substance law. Under the Second Circuit's holding in Rankine, which declined to extend St. Cyr II to cover those aliens convicted after trial rather than on a guilty plea, the petitioner is ineligible for Section 212(c) relief. See Rankine, 319 F.3d at 102.
The decision in Rankine specifically addressed IIRIRA's repeal of Section 212(c) relief rather than AEDPA Section 440(d)'s elimination of such relief for aliens convicted of certain types of offenses. Rankine stands for the proposition, however, that removing Section 212(c) relief does not have an impermissible retroactive effect on aliens who were convicted by a jury prior to Section 212(c) relief becoming unavailable to them. Rankine, 319 F.3d at 102. Rankine thus controls this Court's decision. Moreover, although the petitioner's brief focused solely on the effect of Section 440(d) on his eligibility for a discretionary waiver of deportation, the petitioner acknowledges that Section 304(b) of IIRIRA, which eliminated Section 212(c) relief, is also implicated in his petition. Furthermore, other Circuits have upheld the application of Section 440(d) to aliens convicted by a jury prior to AEDPA's enactment. See, e.g., Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002) (per curiam), petition for cert. filed, 71 U.S.L.W. 3612 (U.S. Feb. 24, 2003) (No. 02-1344) ("[A]pplication of the new [AEDPA] limitations on discretionary relief does not have an impermissible retroactive effect on those aliens who would have been eligible for discretionary relief when they were convicted of a felony after trial.");Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121 (9th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3578 (U.S. Feb. 24, 2003) (No. 02-1273) ("Unlike aliens who pleaded guilty, aliens who elected a jury trial cannot plausibly claim that they would have acted any differently had they known about § 440(d)."); Laquerre v. Reno, 164 F.3d 1035, 1041 (7th Cir.),cert. denied, 528 U.S. 1153 (2000) ("It would border on the absurd to argue that these aliens might have decided not to commit drug crimes, or might have resisted conviction more vigorously, had they known that if they were not only imprisoned but also, when their prison term ended, ordered deported, they could not ask for a discretionary waiver of deportation.").
In Rankine, the Court of Appeals addressed the question of whether Congress's repeal of the Section 212(c) discretionary waiver of deportation through IIRIRA had an impermissible retroactive effect when applied to aliens who had been convicted at trial prior to the repeal. See Rankine, 319 F.3d at 94, 98. In answering the question, the Court of Appeals looked to the Supreme Court's decision in Landaraf v. USI Film Products, 511 U.S. 244 (1994), which established a two-step test to determine whether a law should be applied to conduct that occurred prior to the law's enactment. See id. at 98-99. First, the Court of Appeals considered "whether Congress `expressly prescribed the statute's proper reach'" and determined that Congress had not definitively decided whether IIRIRA's revocation of 212(c) relief applied retroactively to pre-enactment convictions. Id. at 98 (quoting Landqraf, 511 U.S. at 280.)
The Court of Appeals then proceeded to the second step of the test and asked "`whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.'" Id. (quoting Landqraf, 511 U.S. at 280). The court also noted that under Landaraf, a statue is retroactive only if it imposes new legal consequences to events completed before its enactment, and is not impermissibly retroactive merely because it is applied to a case arising from conduct predating the statute's effective date. Id. Determining whether a statute is impermissibly retroactive thus requires a common sense analysis "guided by familiar considerations of fair notice, reasonable reliance, and settled expectations." Id. (quoting St. Cyr II, 533 U.S. at 321).
In Rankine, the Court of Appeals looked to the Supreme Court's opinion in St. Cyr II in which the Court "focused on the fact that plea agreements are a form of quid pro quo where `[i]n exchange for some perceived benefit, defendants waive several of their constitutional rights (including the right to go to trial) and grant the government numerous tangible benefits.'" Id. at 99 (quoting St. Cyr II, 533 U.S. at 322) (alteration in the original). As a result, the Supreme Court found, one of the principal benefits sought by those aliens agreeing to accept a plea offer rather than proceeding to trial was to preserve the possibility of Section 212(c) relief. Id. As a result, the Supreme Court concluded that eliminating Section 212(c) relief for aliens who pleaded guilty prior to the enactment of AEDPA and IIRIRA would be impermissibly retroactive because to do so would attach "a new disability, in respect to transactions or considerations already past." Id. (quotingSt. Cyr II, 533 U.S. at 321.) In Rankine, the Court of Appeals held that here was no such quid pro quo in that case giving rise to the reliance interest protected by the Supreme Court in St. Cyr II because the petitioners in Rankine had decided to go to trial prior to the enactment of IIRIRA. Id. at 100.
The petitioners in Rankine came to the Court of Appeals in a different position from those like the respondent in St. Cyr because "[u]nlike aliens who entered pleas, the petitioners made no decision to abandon any rights and admit guilt — thereby immediately rendering themselves deportable — in reliance on the availability of the relief offered prior to" Section 212(c) relief becoming unavailable. Id. at 99. The Court of Appeals found that the petitioners could not claim to have relied on the availability of Section 212(c) relief because "they decided to go to trial to challenge the underlying crime that could render them deportable and, had they succeeded, § 212(c) relief would be irrelevant." Id. The Court continued:
It is choosing to forgo fighting the conviction of a qualifying crime and enter a plea that leads to an expectation of relief from removal. The petitioners here assumed no similarly heightened expectation from their decision to go to trial. Because those aliens who went to trial prior to the elimination of § 212(c) relief cannot show that they altered their conduct in reliance on the availability of such relief, we hold that IIRIRA's repeal of § 212(c) is not impermissibly retroactive as applied to them.Id. at 100 (internal quotation marks and citation omitted). It is clear that under Rankine, there is no impermissible retroactive effect in applying AEDPA Section 440(d) to the petitioner and thus eliminating the possibility of Section 212(c) relief. The Court of Appeals has denied rehearing inRankine and it is the law of the Circuit and binds this Court. Reyes went to trial in an effort to prove his innocence and eliminate the possibility of deportation altogether by obtaining a verdict of not guilty. There was no reliance on the availability of Section 212(c) relief and no heightened expectation from the decision to go to trial and there is no impermissible retroactive effect in barring Section 212(c) relief now. See Rankine, 319 F.3d at 102. The petition for a writ of habeas corpus is therefore denied.
The petitioner urges the Court to hold this case in abeyance pending the outcome of the petitions for rehearing and rehearing en banc in Carr v. Reno, No. 01-2270, 2002 WL 24144 (2d Cir. Jan. 4, 2002), that are pending in the Second Circuit Court of Appeals. In affirming the district court's denial of a petition for habeas corpus, the Second Circuit's summary order in Carr relied on that court's opinion in Domond which held that there was no impermissible retroactive effect in applying Section 440(d) to an alien whose criminal conduct pre-dated AEDPA but who pleaded guilty after the statute's effective date. The facts of Carr and Domond thus differ significantly from those in this case. In view of the fact that Rankine is on point and is the law in the Circuit, and because the Second Circuit has recently denied rehearing in that case, there is no reason to hold this case in abeyance pending the outcome of the petitions in Carr.
The Government also argues that the petition should be denied on the ground that Reyes has served over five years in prison for an aggravated felony and thus could not qualify for Section 212(c) relief even as it existed prior to the enactment of Section 440(d) of AEDPA. See 8 U.S.C. § 1182(c) (Section 212(c) relief not available "to 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"); Buitrago-Cuesta v. INS, 7 F.3d 291, 296 (2d Cir. 1993) (petitioner ineligible for Section 212(c) relief who had served over five years in prison at the time IJ ordered petitioner deported); Copes, 2001 WL 830673, at *5-6 (alien who had spent more than five years in prison by the time alien was served with order to show cause was ineligible for 212(c) relief). According to the administrative record, Reyes was delivered to the Federal Correctional Institute at Ray Brook, New York on October 17, 1988 at which time he had been sentenced by a judge of this Court to three terms of 10 years' imprisonment to run concurrently. (R. at 55-57.) Over eight years later, on January 3, 1997, the INS served the petitioner with the order to show cause that began his deportation proceedings at the Federal Correctional Institute in Oakdale, Louisiana. (R. at 91.) The Government contends that the evidence of these two events in the administrative record clearly demonstrates that Reyes has served over five years in prison and is thus ineligible for Section 212(c) relief.
Reyes argues in his petition, which he filed pro se, that he was not convicted of an aggravated felony and thus, presumably, that he was not ineligible for Section 212(c) relief by virtue of such a conviction. However, Section 101(a)(43) (B) of the INA defines an aggravated felony as "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a) (43)(B). 18 U.S.C. § 924(c)(2) defines a "drug trafficking crime" as "any felony punishable under the Controlled Substances Act ( 21 U.S.C. § 801 et seq.). . . ." The defendant was convicted of violating 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(B), 841(b)(1)(C) and 846, provisions of the Controlled Substances Act, and has thus been convicted of aggravated felonies. This finding is consistent with the BIA's conclusion that Reyes had been convicted of an aggravated felony in its denial of the petitioner's motion to reopen the immigration proceedings.
Reyes appears to argue that because he was convicted of the aggravated felonies prior to the November 18, 1988 enactment of the Anti-Drug Abuse Act of 1988 ("ADAA"), § 7344, Pub.L. No. 100-690, 102 Stat. 4181, 4470-71 (1988) (codified at 8 U.S.C. § 1251(a)(2)(A) (iii) (1994)), which made conviction of an "aggravated felony" a ground for deportation, there would be an impermissible retroactive effect to classifying his convictions as aggravated felonies and finding him ineligible for Section 212(c) relief on this ground. The Second Circuit Court of Appeals has rejected this argument, however, and there is no impermissible retroactive effect in this case. See Kuhali v. Reno, 266 F.3d 93, 110-11 (2d Cir. 2001); Bell v. Reno, 218 F.3d 86, 94-96 (2d Cir.), cert. denied, 531 U.S. 1081 (2001).
The petitioner argues that the administrative record does not contain a conclusive finding that Reyes served five years or more in prison, and that the Court should remand the case to the BIA to make such a determination. The petitioner does not, however, argue that the Reyes has in fact spent less than five years in prison. Instead, counsel for the petitioner merely states that such a determination is best left to the fact-finding expertise of the immigration authorities.
In this case, the Court finds that it is sufficiently clear from the administrative record that the petitioner has served more than five years in prison and is thus ineligible for Section 212(c) relief. The petitioner does not argue that he is qualified for the relief sought by virtue of having spent less than five years in prison. Furthermore, remand to the BIA for a determination of the length of time that the petitioner has been incarcerated would be futile because Reyes is clearly ineligible for Section 212(c) relief under Rankine. See NLRB v. American Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982) ("reversal and remand [required] only where there is a significant chance that but for the error, the agency might have reached a different result") (emphasis in the original); Foti v. INS, 332 F.2d 424, 424 (2d Cir. 1964) (per curiam) ("Remand of this case to the Attorney General would be a pointless formality since the Attorney General is required by the statute to deny petitioner's application."). But see, Gonzalez v. INS, No. 01 Civ. 6229, 2002 WL 31444952, at *6-7 (S.D.N.Y. Oct. 31, 2002) (noting American Geri-Care but remanding petition to the BIA on the ground that petitioner had a substantial chance of receiving Section 212(c) relief).
CONCLUSION
The remaining arguments of the parties are either moot or without merit. For the reasons explained, Reyes's petition for a writ of habeas corpus is denied. The Clerk is directed to enter judgment and to close this case.