Opinion
No. 01CV388.
June 21, 2004
Report Recommendation
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C) on October 18, 2001. (Docket No. 11.) The instant matter before the Court is the Petition for a Writ of Habeas Corpus sought by Anthony Smith pursuant to 28 U.S.C. § 2241 (Docket Nos. 1, 8 (Amended Petition)). Respondent is the United States Department of Justice, Immigration and Naturalization Service ("INS"), the former agency charged with immigration control. At issue here is whether petitioner can rely upon relief under former § 212(c) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1182(c) (1994) (repealed).
As noted by several courts, e.g., Brown v. Ashcroft, 360 F.3d 346, 348, n. 1 (2d Cir. 2004), on March 1, 2003, as part of the creation of the new Department of Homeland Security, the Immigration and Naturalization Service, an office within the Department of Justice, was reconstituted as the Bureau of Immigration and Customs Enforcement and the Bureau of U.S. Citizenship and Immigration Services within the new department. Because all the relevant events and ruling occurred prior to this change, references in this Report and Recommendation will be to the former Immigration and Naturalization Service or the INS.
BACKGROUND
Petitioner Anthony Smith (or Hal Anthony Smith, hereinafter "Petitioner" or "Smith") is a citizen of Jamaica (Docket No. 9, Ans. and Return, Certified Administrative Record at 9, 10, 59, 96, hereinafter "CR"), and currently is in federal custody awaiting the determination of this petition. He legally arrived in Florida around August 1983 and resided in the United States continuously for seventeen years (at the time of his removal hearing) as a lawful permanent resident (CR at 10, 96).Criminal Convictions
Petitioner was convicted, upon a guilty plea, in New York State Supreme Court for attempted (in violation of New York Penal Law § 110.00) criminal sale of a controlled substance (cocaine) in the third degree, in violation of New York Penal Law § 220.39, pursuant to judgment entered on or about March 7, 1990. (Docket No. 9, Ans. ¶ 3.) Smith was sentenced to five years probation for this conviction (CR 10, 59, 20). He was convicted, again upon a guilty plea, in September 24, 1999, for attempted (again in violation of New York Penal Law § 110.00) criminal possession of a controlled substance (again, cocaine) in the third degree, in violation of New York Penal Law § 220.16, in New York State Supreme Court. (Docket No. 9, Ans. ¶ 4, CR 96; see Docket No. 12, Pet. Memo. at 1.) Petitioner was sentenced to three to six years imprisonment for the latter conviction. (Docket No. 9, Ans. ¶ 4; CR 10, 20, 59.) When he filed his Petition, Smith was incarcerated in the Orleans Correctional Facility in Albion. Following his release from New York State custody, Smith was turned over to Bureau of Citizenship and Homeland Security, and is incarcerated in the Pike County Correctional Facility, Lords Valley, Pennsylvania (letter of Smith to Clerk of Court, May 29, 2003).
Immigration Proceedings
Petitioner was served a Notice to Appear by the INS on or about December 22, 1999 (CR 97). There, he was charged with being inadmissible to the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony, namely a controlled substance offense. The INS relied upon petitioner's 1990 conviction.
Petitioner appeared before the Immigration Judge on February 2 and March 15, 2000 (by video from the Orleans Correctional Facility), advised both times of his right to counsel before proceeding with a removal hearing (CR 43-49, 50-54). Petitioner appeared again (by video) without counsel on May 3, 2000 (CR 55-67), and the Immigration Judge then proceeded to conduct a removal hearing. At that hearing, Smith admitted to the allegations in the Notice to Appear (CR 58-60). During the third hearing, the Immigration Judge stated that petitioner's 1990 attempted criminal sale of a controlled substance conviction would have petitioner considered a drug trafficker (CR 60). The Immigration Judge ordered petitioner to be removed from the United States as a drug trafficker. (CR 35, 37-40, 60-61.) There, the Immigration Judge noted petitioner's two state drug convictions (CR 37-38). The Immigration Judge also found that petitioner was not entitled to cancellation of removal, adjustment of status, or other forms of relief from removal due to his conviction of an aggravated felony. (CR 35-40, 60-67.)
Petitioner appealed the order of removal with the Board of Immigration Appeals ("BIA") (CR 29-31.) On November 13, 2000, the BIA issued a decision dismissing the appeal, ruling that petitioner was removable as an aggravated felon and, due to his conviction of a controlled substance violation, he was not eligible for relief. (CR 2-4.)
This Proceeding
Petitioner then filed for the Writ of Habeas Corpus with the United States District Court for the Northern District of New York on or about April 24, 2001 (Docket No. 1). This proceeding was transferred to this District on May 31, 2001 (see Docket No. 4), and petitioner was granted in forma pauperis status and leave to file an Amended Petition (Docket Nos. 5, 7). Petitioner filed an Amended Petition on August 10, 2001 (Docket No. 8), and the INS answered and filed the Certified Record on October 12, 2001 (Docket No. 9), as well as a Memorandum of Law in opposition to granting the Writ (Docket No. 10). Petitioner replied by filing a Memorandum of Law (Docket No. 12, Nov. 15, 2001).
DISCUSSION
I. Equal Protection
Petitioner argues that he was denied equal protection of the laws because he was denied the opportunity to apply for discretionary waiver of deportation under § 212(c). The INS responds that petitioner was ineligible under the terms of that provision and that he was covered by the 1996 repeal of § 212(c). The equal protection claim here turns on the application (and applicability) of the now repealed § 212(c). Thus, does petitioner qualifies for § 212(c) relief and, if so, is such relief available to him despite its subsequent repeal?
II. Relevant Immigration Law
"Any alien who is convicted of an aggravated felony at any time after admission [to the United States] is deportable. 8 U.S.C. § 1227(a)(2)(A)(iii)." Evangelista v. Ashcroft, 359 F.3d 145, 149 (2d Cir. 2004). Pertinent to this case, an aggravated felony under the Act includes illicit trafficking in a controlled substance as defined by 21 U.S.C. § 802, the Controlled Substance Act, 8 U.S.C. § 1101(a)(43)(B). Within the Controlled Substance Act's terms, drug trafficking is defined as a crime including any felony punishable under the Controlled Substance Act, 21 U.S.C. §§ 801, et. seq., 18 U.S.C. § 924(c)(2).
A. Discretionary Waiver of Deportation under Section 212(c)
When it existed, § 212(c) authorized the Attorney General to provide relief from deportation to certain qualified aliens. That section 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 without regard to the provisions of subsection (a) of this section. . . . Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title. The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony a term of imprisonment of at least 5 years."8 U.S.C. § 1182(c) (1994). Prior to 1997, aliens deportable under the Act could apply to the Attorney General for a discretionary waiver of deportation pursuant to § 212(c) of the Act, 8 U.S.C. § 1182(c). "To qualify for such relief, an alien was required to show that he (1) was a lawful permanent resident of the United States, (2) had an unrelinquished domicile of seven consecutive years, and (3) had not committed an aggravated felony for which he had served a term of at least five years." Rankine v. Reno, 319 F.3d 93, 95 (2d Cir.), cert. denied, ___ U.S. ___, 124 S.Ct. 287 (2003); see 8 U.S.C. § 1182(c). The Act, in turn, defines various offenses to be aggravated felonies, including a controlled substance offense (as charged against petitioner),see 8 U.S.C. § 1227(a)(2)(B)(i).
But in 1996, Congress enacted two statutes that curtailed and in some instances eliminated that relief. First, Congress enacted the Anti-Terrorism and Effective Death Penalty Act, Pub.L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996) ("AEDPA"), which limited eligibility for relief under § 212(c). Rankine, supra, 319 F.3d at 95. The AEDPA amended § 212(c) defined an aggravated felony to include any alien who had been convicted of a violation of (or, pertinent to this case, attempt to violate) any state or federal law related to a controlled substance, other than a single offense involving possession for personal use of 30 grams or less of marijuana. AEDPA § 440(d)(2); 8 U.S.C. § 1227(a)(2)(B)(i). Second, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-546, -597 (1996) ("IIRIRA"), which repealed § 212(c), and replaced it with a new scheme called "cancellation of removal," which allows the Attorney General now to cancel removal proceedings for a class of aliens, but excluding those aliens convicted of an aggravated felony.Rankine, supra, 319 F.3d at 95-96. As concluded by the Second Circuit in Rankine, a removal proceeding commenced after April 1, 1997, resident aliens convicted of an aggravated felony are no longer eligible for any form of discretionary relief from removal. Id. at 96.
B. St. Cyr and Retroactivity of Repealed Section 212(c)
The next major issue was the retroactivity of the AEDPA limitation and IIRIRA repeal of § 212(c) and its effect on convictions entered before these statutes were enacted. Courts have wrestled with this question of retroactivity and the variety of situations in which aliens were convicted. In INS v. St. Cyr, 533 U.S. 289, 326 (2001), the Supreme Court held § 212(c) relief, though repealed, "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." For determining the "relevant past event" for retroactivity analysis under Landgraf v. USI Film Products, 511 U.S. 244, 270 (1994), courts have considered the underlying criminal conduct, the agreement to plea guilty, the decision to go to criminal trial, and the conviction. See Thom v. Ashcroft, ___ F.3d ___, ___, 2004 U.S. App. LEXIS 10463, No. 01-2404, slip op. at 3705, 3724 (2d Cir. May 27, 2004) (Underhill, D.J., dissenting). The guilty plea (as pertinent here) was found to be the relevant event in the St. Cyr cases. See St. Cyr, supra, 229 F.3d at 419; INS v. St. Cyr, supra, 533 U.S. at 323-24.
The following analysis is derived from Judge Underhill's dissent in Thom v. Ashcroft, slip op. at 3724-31, and that panel's majority holding, slip op. at 3714. In contrast, the Second Circuit has rejected the underlying offense as the trigger for retroactivity. Domond v. INS, 244 F.3d 81, 85-86 (2d Cir. 2001); Kahn v. Ashcroft, 352 F.3d 521, 523-24 (2d Cir. 2003);see St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir. 2000) (dictum), aff'd, 533 U.S. 289 (2001). An alien defendant's decision to go to trial, however, was considered a relevant event in Rankine, supra, 319 F.3d at 99; Swaby v. Ashcroft, 357 F.3d 156, 161-62 (2d Cir. 2004) (rejection of plea agreement held not to avoid result in Rankine for alien seeking denial of retroactive effect of repeal of § 212(c)). Recently, in Thom v. Ashcroft, the Second Circuit concluded that conviction following trial was a relevant event for retroactivity analysis. No. 01-2404, slip op. at 3711-15 (adhering to Rankine, supra).
This case is factually similar to one of the cases decided inRankine, supra, 319 F.3d at 96-97, where petitioner Paul Lawrence, a citizen of Jamaica, pled guilty to attempted criminal possession of a controlled substance in 1986 and was sentenced to probation. In 1995, Lawrence was convicted (although after trial) of criminal sale and possession of cocaine in the third degree, and was sentenced to terms of four and a half to nine years.Id. at 96. The Immigration Judge found Lawrence was ineligible for § 212(c) relief and the BIA upheld the Immigration Judge on appeal. Id. at 96. The district court then denied Lawrence habeas corpus petition. Id. at 97. The Second Circuit inRankine, while discussing the effect of a trial rather than a plea on the retroactivity of the repeal of § 212(c), affirmed the denial of Lawrence's habeas petition. Id. at 98, 102.
C. AEDPA and "Drug Trafficking"
The INS argues that petitioner was found to be a drug trafficker and, under the AEDPA, ineligible for relief under § 212(c). The conduct petitioner pleaded guilty to for both the 1990 and 1999 convictions was conduct that would be illegal under the Controlled Substance Act. See 21 U.S.C. §§ 844(a) (criminal possession), 846 (attempt to violate). Petitioner contends that the charge of attempted criminal possession of a controlled substance did not qualify him as a "drug trafficker" under the AEDPA. Petitioner retorts that the Immigration Judge did not classify him as a "drug trafficker," but apparently was raised by the BIA for the first time on appeal. But the Immigration Judge did note in his colloquy with petitioner that the 1990 conviction for attempted criminal sale of a controlled substance would classify petitioner as a drug trafficker (CR 60), and the Immigration Judge's decision relied upon that conviction (as well as petitioner's 1999 attempted criminal possession conviction) (CR 37-38, 39, 60).
Petitioner argues that the INS improperly uses the 1990 conviction, which derived from a plea bargain and had no prison sentence, to enhance his status to that of a "drug trafficker," hence rendering him to be an aggravated felon ineligible for § 212(c) relief. The INS argues that, as for this 1990 conviction, petitioner was not a lawful domicile in the United States for seven consecutive years when he was convicted to qualify for § 212(c) relief. See 8 U.S.C. § 1182(c) (1994); St. Cyr, supra, 533 U.S. at 295. The INS views the 1990 conviction as an aggravated felony apparently despite the sentence imposed upon petitioner (probation rather than a term of imprisonment). See 8 U.S.C. § 1101(a)(43)(B). The illicit trafficking of a controlled substance aggravated felony does not include a requirement that the alien be imprisoned for any length of time to have his offense considered an aggravated felony. Compare, e.g., 8 U.S.C. § 1101(a)(43)(F) (crime of violence for which the term of imprisonment is at least 1 year). Regarding the 1999 conviction, the INS contends that this conviction for attempted possession of a controlled substance meets the Act's definition for an aggravated felony.
Under retroactivity analysis, petitioner pleaded guilty to conduct constituting aggravated felonies under the Act. Petitioner, however, has convictions before and after the effective date of the repeal of § 212(c). St. Cyr makes § 212(c) available to an alien convict who "notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." 533 U.S. at 326 (emphasis added). Thus, the law at the time of the plea (including the terms of § 212(c) itself) determines whether § 212(c) relief is available.
As for the 1990 conviction before the date of § 212(c)'s repeal, petitioner was not eligible because he did not have seven consecutive years of domicile in this country at the time of his conviction to qualify for § 212(c) relief, having only about 6½ years of domicile (August 1993 through March 7, 1990, plea and conviction). Petitioner does not argue that he had six prior months of domicile in this country to meet that element of § 212(c).
As for the 1999 conviction, both AEDPA and IIRIRA were in effect to modify and ultimately repeal § 212(c) relief. This differs from the alien in St. Cyr, supra, 533 U.S. at 293, who pleaded guilty in 1996 months before the AEDPA and IIRIRA became effective. See Evangelista, supra, 359 F.3d at 154-55. In Evangelista, petitioner was convicted of an aggravated felony after the effective date of AEDPA. The Second Circuit was posed with the question, in light of St. Cyr, of whether to reconsider its holding inDomond, supra, 244 F.3d at 85-86, that "the repeal of section 212(c) `imposes no new legal consequences on aliens . . . whose criminal conduct pre-dates AEDPA, but whose convictions came after AEDPA's enactment. It is the conviction, not the underlying criminal act, that triggers the disqualification from § 212(c) relief.'" Evangelista, supra, 359 F.3d at 154 (quotingDomond, supra, 244 F.3d at 85-86), 154-55. The court cited various cases it, and other courts, have reconsidered the viability of Domond and upheld that decision as good law even in the light of St. Cyr. Evangelista, supra, 359 F.3d at 154-56.
Thus, petitioner either does not qualify for § 212(c) relief where retroactivity was not a bar to that relief (because he lacks seven years domicile required under the section) or is barred by the subsequent repeal of that section, and his Petition for Habeas Corpus thus should be denied.
III. Exhaustion of Administrative Relief
Alternatively, the INS argues that this Court lacks jurisdiction to consider petitioner's claim that he was misclassified as a "drug trafficker" since he never raised that objection to either the Immigration Judge or the BIA. This Circuit has required habeas petitioners to first exhaust whatever administrative remedies before filing their petition for the writ. See United States v. Lara, 905 F.2d 599, 605 (2d Cir. 1990); Guida v. Nelson, 603 F.2d 261, 262 (2d Cir. 1979) (per curiam).
Petitioner argues that the Immigration Judge did not find him to be a "drug trafficker" and that the BIA incorrectly found him to be such a trafficker. Thus, apparently petitioner did not have an opportunity to raise this objection administratively.
As discussed previously, the Immigration Judge did note in his colloquy with petitioner as he was rendering his decision that petitioner's conviction for attempted criminal sale of controlled substance (which petitioner admitted to in the removal hearing) would make petitioner a drug trafficker subject to removal on that ground (CR 60). As defined in the Act, the conduct petitioner plead guilty to (attempted sale of controlled substance) constitutes an aggravated felony it involves illicit trafficking in a controlled substance, 8 U.S.C. § 1101(a)(43)(B). But, given the recommendation on the merits of petitioner's contentions, this Court need not reach the exhaustion argument as to the "drug trafficker" classification.
CONCLUSION
Based upon the above, it is recommended that the Petition for a Writ of Habeas Corpus (Docket Nos. 1, 8) be denied.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ordered that this Report Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report Recommendation to all parties.
ANY OBJECTIONS to this Report Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report Recommendation in accordance with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b) and W.D.N.Y. Local Civil Rule 72.3(a). FAILURE TO FILE OBJECTIONS TO THIS REPORT RECOMMENDATION WITHIN THE SPECIFIED TIME OR TO REQUEST AN EXTENSION OF SUCH TIME WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT DISTRICT COURT'S ORDER ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d Cir. 1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).
The District Court on de novo review will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. See Patterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to W.D.N.Y. Local Civil Rule 72.3(a)(3), "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3) may result in the District Court's refusal to consider the objection.
SO ORDERED.