Opinion
No. C 03-5143 SI.
June 29, 2004
JUDGMENT
The petition for writ of habeas corpus is denied. Judgment is entered accordingly.
IT IS SO ORDERED AND ADJUDGED.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
On June 25, 2004, this Court heard argument on Maria Elba Rosas-Robles' petition for writ of habeas corpus. Having carefully considered the arguments of the parties and the papers submitted, the Court hereby DENIES the petition for the reasons set forth below.INTRODUCTION
On November 20, 2003, petitioner Maria Elba Rosas-Robles, a native and citizen of Mexico, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in this Court. Petitioner alleged that the Board of Immigration Appeals (BIA) erred by affirming the Immigration Judge's pretermission of her application for relief from removal under former § 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) (repealed). At the time she filed this habeas petition, Ms. Rosa-Robles' direct appeal of the BIA decision was pending in the Ninth Circuit (No 02-71522). On March 31, 2004, this habeas case was stayed pending decision on the direct appeal. On April 9, 2004, the Ninth Circuit decided the direct appeal, finding that petitioner is deportable as one convicted of an aggravated felony under INA § 237(a)(2)(iii), 8 U.S.C. § 1227 (a)(2)(A)(iii). The Ninth Circuit determined that it lacked jurisdiction regarding petitioner's argument that the Immigration Judge wrongfully pretermitted her application for relief from removal under § 212(c). The parties advise this Court that all causes of action in the habeas petition remain properly before this Court for decision, particularly the § 212(c) argument.
BACKGROUND
Petitioner entered the United States on June 28, 1974, as a lawful permanent resident. On May 24, 1996, petitioner and various co-conspirators were federally charged with distributing at least 31 kilograms of cocaine in the San Francisco Bay Area between January 25, 1996, and May 18, 1996. Petitioner claims that the events in which she participated took place prior to April 24, 1996, the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996. On December 1, 1999, petitioner pleaded guilty to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846.
While in federal custody, the INS served petitioner with a notice to appear, charging her with removability from the United States as an alien who had been convicted of an aggravated felony, in violation of 8 U.S.C. § 1227(a)(2)(A)(iii), and as an alien who had been convicted of a controlled substance offense, in violation of 8 U.S.C. § 1227(a)(2)(B)(i). Petitioner now seeks a writ of habeas corpus on grounds that she is eligible for relief under former § 212(c), because such relief was available to her at the time she committed the acts underlying her aggravated felony conviction.
DISCUSSION
1. Petitioner is not eligible for § 212(c) relief
Prior to 1996, an alien facing deportation or exclusion was eligible to apply to the Attorney General for a waiver of deportation or exclusion under § 212(c) of the INA. To be eligible for a waiver, the alien was required to demonstrate that she was a lawful permanent resident who had resided in this country continuously for at least seven years. If the relief was granted, the deportation or exclusion proceedings would be terminated. On April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) came into effect, and Section 440(d) of AEDPA made § 212(c) relief unavailable to any alien convicted of an aggravated felony. On September 30, 1996, Congress enacted IIRIRA into law, which repealed § 212(c) relief.
Petitioner argues that she is eligible for relief from removal under § 212(c) because she engaged in all of the conduct underlying her alleged conviction prior to the effective dates of AEDPA and IIRIRA. Respondents argue that petitioner is not eligible for § 212(c) relief because (1) she was placed in removal proceedings after § 212(c) had been repealed by IIRIRA, and (2) she was not eligible for § 212(c) relief at the time she entered her guilty plea on December 1, 1999.
Respondent relies on INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001), to argue that a denial of § 212(c) relief would constitute an impermissible retroactive application of the statute. St. Cyr, however, does not go so far. In St. Cyr, respondent, a lawful permanent United States resident, pleaded guilty to a criminal charge that made him deportable. At the time of his plea, respondent would have been eligible for a waiver under the applicable immigration laws, but his removal proceedings were commenced after AEDPA's and IIRIRA's effective dates. The Court held that § 212(c) "relief remains available for aliens, like respondent, 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." St. Cyr, 533 U.S. at 326.
In arriving at its decision, the Court applied the two-part test set forth in Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994). The Court first concluded that Congress did not clearly direct whether IIRIRA applies to conduct prior to the statute's enactment. St. Cyr, 533 U.S. at 315-316. The Court then analyzed whether the application of IIRIRA's bar from relief would consist of an impermissible retroactive effect. Id. at 320. The Court held that where aliens have negotiated plea agreements with the reasonable expectation that they would be eligible for § 212(c) relief, denial of such relief "clearly `attaches a new disability, in respect to transactions or considerations already past.'" Id. at 321 (citing Landgraf, 511 U.S. at 269). The Court reasoned that plea agreements involve a bargain between a criminal defendant and the government, and that aliens usually consider the immigration consequences of their crimes in deciding whether to enter into a plea agreement.Id. The Court explained:
Now that prosecutors have received the benefit of these plea agreements, agreements that were likely facilitated by the aliens' belief in their continued eligibility for § 212(c) relief, it would surely be contrary to `familiar considerations of fair notice, reasonable reliance, and settled expectations,' to hold that IIRIRA's subsequent restrictions deprive them of any possibility of such relief. Id. at 323-24 (quoting Landgraf, 511 U.S. at 270).
In this case, petitioner pleaded guilty to an aggravated felony almost four years after the effective date of AEDPA. Thus, petitioner could not have relied on possible § 212(c) relief in pleading guilty. Denying petitioner such relief would, consequently, not be "contrary to `familiar considerations of fair notice, reasonable reliance, and settled expectations.'"Id. at 323-24 (quoting Landgraf, 511 U.S. at 270).
Petitioner's argument that she should be entitled to relief because the acts underlying her criminal conviction took place when § 212(c) relief was still available also lacks merit. Petitioner could not have relied on the benefit of a plea bargain that had not yet been offered. As the Ninth Circuit noted inArmendariz-Montoya v. Sonschik, 291 F.3d 1116 (9th Cir. 2002), cert. denied, 123 S.Ct. 2247 (2003):
It would border on the absurd to argue that these aliens might have decided not to commit drug crimes . . . 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. Id. at 1121 (quoting LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998)).
Indeed, at oral argument petitioner acknowledged that she cannot make such a reliance claim.
However, petitioner contends that Landgraf supports her argument that relief must be given to aliens who were eligible for § 212(c) relief at the time of the commission of the underlying criminal offenses but not at the time of the entry of a plea, because the new law "categorically attaches `a new disability' and/or new legal consequences" to prior conduct. Under Landgraf, she argues, this is impermissible whether or not petitioner "relied" or had "settled expectations." (Traverse, at 10) The flaw in petitioner's argument, however, is that under her circumstances the new law did not attach new disability toprior conduct. As the Second Circuit has emphasized in considering this same question, "[i]t is the conviction, not the underlying criminal act, that triggers the disqualification from § 212(c) relief," so that the section does not have retroactive effect in these circumstances. Kahn v. Ashcroft, 352 F.3d 521, 523 (2d Cir. 2003) (internal quotations and citations omitted). The "new disability" attaches to the conviction — based on petitioner's plea taken years after the new law was enacted — not to the underlying criminal act.
Accordingly, petitioner is not eligible for § 212(c) relief and the Immigration Judge and BIA did not wrongfully pretermit her application for such relief.
2. Petitioner's due process arguments are unpersuasive
In her traverse, petitioner argues that her due process rights are violated if she is ineligible for any discretionary relief despite her equities, namely being a long-term resident of advanced age with two adult U.S. citizen children. This Court finds that petitioner's removal is not manifestly unjust, and that her argument is unpersuasive. Petitioner's due process rights are not violated, and her removal is proper.
CONCLUSION
For the foregoing reasons and for good cause shown, the Court hereby DENIES petitioner's petition for writ of habeas corpus. [docket #1]