Opinion
CA No. 03-380 ML
March 22, 2004
Report and Recommendation
Antonio Tavares ("Tavares" or "petitioner"), pro se, currently detained at the Adult Correctional Institutions, Cranston, Rhode Island, filed with the court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging a decision by the Board of Immigration Appeals ("BIA") ordering him removed to Cape Verde. Tavares also filed with the Court, attached to his § 2241 petition, a motion for a Stay of Removal. The Department of Homeland Security, Bureau of Immigration and Customs Enforcement ("DHS" or "Government") has moved to dismiss the petition but has not filed an opposition to the Motion for a Stay. Tavares has objected to dismissal.
These matters have 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, and Tavares' motion for a Stay of Removal be denied.
Background
Antonio Tavares, a lawful permanent resident, was born in Cape Verde on December 26, 1966 and was admitted to the United States on July 2, 1977 as an immigrant. Petitioner has ample family ties to this country. His daughter, mother, two brothers, and one sister are all U.S. citizens; his father and three other sisters are lawful permanent residents.Despite his ample family ties to this country, petitioner also has an ample criminal history here. On July 8, 1992 Tavares was convicted of assault and battery (family abuse) and malicious destruction of property by a state court in Massachusetts. He received one year probation. Tavares then violated the terms of his probation on November 2, 1992 and was convicted of violating the Abuse Prevention Act. For the probation violation, he received a one year suspended sentence, and for violating the Abuse Prevention Act, he received a two year suspended sentence. On January 19, 1994, Tavares violated his probation again and received a one year sentence at a correctional facility.
On February 2, 1993, Tavares was charged with possession of cocaine. After a continuance without a finding, he received probation. On September 19, 1995, he was convicted of possession of cocaine and received probation and a one year suspended sentence. Lastly, on May 18, 2000, petitioner was convicted of two counts of possession of cocaine, assault with a dangerous weapon, malicious destruction of property, and trespassing. For these crimes, he received eighteen months of probation and was ordered to pay restitution.
In July 2001, the then Immigration and Naturalization Service, now the DHS, instituted removal proceedings against the petitioner. The DHS alleged that Tavares was removable because he was convicted of an aggravated felony, see 8 U.S.C. § 1227 (a)(2)(A)(iii), and because he was convicted of a controlled substance violation, see 8 U.S.C. § 1227 (a)(2)(B)(i). The factual predicate for the removal proceedings rested on his September 19, 1995 and May 18, 2000 possession of cocaine convictions. At the conclusion of the immigration hearings, the immigration judge ("IJ") found Tavares removable as charged and ordered him removed to Cape Verde.
Thereafter, Tavares filed a petition for post-conviction relief for his September 19, 1995 possession of cocaine conviction. The conviction was ultimately vacated, which meant Tavares was no longer removable as an aggravated felon. Petitioner was, however, still removable pursuant to the second immigration charge, namely as an alien convicted of a violation of any law relating to a controlled substance violation (the May 18, 2000 possession of cocaine conviction). See 8 U.S.C. § 1227 (a)(2)(B)(i). Nonetheless, the removal proceedings were reopened.
At the second round of immigration hearings, the DHS added another removal charge: the DHS contended that Tavares' conviction for assault and battery on July 8, 1992 was a crime of violence, as defined in 8 U.S.C. § 1101(a)(43)(F), which, in turn, constituted an aggravated felony. The IJ disagreed, finding that the only basis for removal was 8 U.S.C. § 1227(a)(2)(B)(i) (based upon the May 18, 2000 possession of cocaine conviction). Accordingly, the IJ found that Tavares was eligible to apply for a cancellation of removal, which the IJ granted.
The DHS appealed the IJ's findings and decisions to the Board of Immigration Appeals ("BIA") claiming that the assault and battery conviction was a crime of violence, which in turn, constituted an aggravated felony. The BIA agreed with the DHS, vacated Tavares' cancellation of removal, and ordered him removed to Cape Verde. On June 23, 2003, Tavares filed a motion with the U.S. Court of Appeals for the First Circuit to stay his removal. The First Circuit dismissed his appeal for lack of jurisdiction.
Tavares thereafter filed the instant petition for a writ of habeas corpus. In his petition, Tavares contends that: (1) the BIA wrongly determined that his assault and battery conviction was a crime a violence, (2) the BIA wrongly determined that he was convicted of an aggravated felony, (3) he is eligible for a cancellation of removal, (4) he is eligible for a Section 212(h) waiver, and (5) he is eligible for a waiver under former section 212(c). The Government has moved to dismiss. Tavares has objected.
This Court has culled through Tavares' petition for a writ of habeas corpus, selecting those issues upon which Tavares articulates a factual basis. The petition also mentions, without articulating a factual basis, claims based upon the following: (a) the equal protection clause (b) the right to privacy (c) the right to procreate (d) the right to associate (e) and numerous treaties. Since there is no factual basis articulated for these claims, I summarily reject them and recommend that they be dismissed. Plaintiff has not met his burden to demonstrate that he is entitled to habeas corpus reliefs for these claims.
Tavares raised his claim for a Section 212(c) waiver in his objection to the Government's motion to dismiss.
Discussion
An alien is deportable if he has been convicted of certain criminal offenses, including an aggravated felony. See 8 U.S.C. § 1227(a)(2)(iii). An aggravated felony, in immigration parlance, is defined in 8 U.S.C. § 1101(a)(43) and encompasses a laundry list of crimes including "crimes of violence." See 8 U.S.C. § 1101(a)(43)(F). The Government contends here, as it did before the IJ and BIA, that Tavares' 1992 conviction for assault and battery is a crime of violence which makes him removable as an aggravated felon and, consequentially, ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a). Tavares, on the other hand, contends that his assault and battery conviction is not a crime of violence, and, consequently, he is not removable as an aggravated felon and is eligible for a cancellation of removal.
Title 18, Section 16 of the United States Code, provides that a crime of violence is:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony, and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.18 U.S.C. § 16.
Pursuant to Massachusetts law, where Tavares was convicted, assault and battery are common law crimes. Commonwealth v. Burke. 457 N.E.2d 622.623-24 (Mass. 1983). Under the common law, "an assault is defined as an attempt to use physical force on another, or as a threat of use of physical force." Commonwealth v. Gorassi, 733 N.E.2d 106, 110 (Mass. 2000); See also Commonwealth v. Shaffer, 326 N.E.2d 880,885 (Mass. 1975))"definition of an assault is an attempt or threat to do bodily harm"). "The central aspect of an assault is an attempted application of physical force or threat of the use of physical force, either by an attempt to do bodily harm, or by placing the victim in fear of imminent bodily harm." Gorassi, 733 N.E.2d at 110. In a prosecution for a battery, on the other hand, there must be (1) a physically harmful touching (2) a touching that was potentially physically harmful or (3) a touching that was non-consensual. Burke, 457 N.E.2d at 625.
The punishment for assault and battery, however, is statutory. See Mass. Gen. Laws ch. 265, § 13A (punishment for assault and battery shall not be more than two and one half years in a house of corrections or a fine of not more than five hundred dollars).
Here, Tavares' conviction of an assault satisfies the definition of a crime of violence. An assault in Massachusetts, as mentioned, is the attempt to use physical force on another, or a threat of the use of physical force, fitting squarely within the definition of a crime of violence, "an offense that has as an element the use, attempted use, or threatened use of physical force." See 18 U.S.C. § 16(a). Since the definition of an assault in Massachusetts fits within the definition of a crime of violence in immigration parlance, Tavares was correctly found to have committed a crime of violence.
Having been convicted of a crime of violence, Tavares was properly determined to be convicted of an aggravated felony, see 8 U.S.C. § 1101(a)(43)(F) (providing that an aggravated felony is any conviction of a crime of violence defined in 18 U.S.C. § 16), and consequently, ineligible for a cancellation of removal. See 8 U.S.C. § 1229(b)(a)(3) (providing, in pertinent part, The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien . . . (3) has not been convicted of an aggravated felony.").
If Tavares was not convicted of an aggravated felony, he would be eligible to apply for a cancellation of removal as to his 8 U.S.C. § 1227 (a)(2)(B)(i) (controlled substance violation) ground of removal. However, the BIA addressed the merits of his cancellation of removal application, and rejected it, finding that the "seriousness of [Tavares'] lengthy and violent criminal history" does not warrant this type of discretionary relief. See Government's Exhibit I.
Next, Tavares contends that he is eligible for a Section 212(h) waiver. In certain circumstances, the Attorney General may waive the inadmissibility of certain aliens pursuant to Section 212(h) of the INA, codified at 8 U.S.C. § 1182(h). However, lawful permanent residents convicted of an aggravated felony are ineligible for a Section 212(h) waiver. See 8 U.S.C. § 1182(h); See also Barton v. Ashcroft, 171 F. Supp.2d 86, 90 (D. Conn. 2001). Furthermore, Section 212(h) precludes relief for aliens convicted of drug offenses, other than simple possession of 30 grams or less of marijuana. See 8 U.S.C. § 1182(h);See also Alvarez-Garcia v. INS. 234 F. Supp.2d 283 (S.D.N.Y. 2002) Here, petitioner has been convicted of an aggravated felony and has been convicted of possession of cocaine. Accordingly, Section 212(h) does not provide Tavares a basis for federal habeas relief.
It is unclear whether the petitioner has exhausted this claim.
Finally, Tavares claims he is eligible for a waiver under former Section 212(c) of the IN A. A § 212(c) waiver was an act of grace, once vested with the Attorney General of the United States. See, e.g., Mattis v. Reno, 212 F.3d 31, 32 (1st Cir. 2000) abrogated by INSv. St. Cyr, 533 U.S. 289 (2001). In 1996, Congress eliminated § 212(c) relief. See, e.g., INS v. St. Cyr. 533 U.S. 289. However, pursuant to St. Cyr, Tavares is eligible to apply for a waiver under former Section 212(c) for his aggravated felony ground of removal, id. A waiver of this ground of removal does just that — it waives only that basis for removal. It does not erase the underlying conviction, nor does it eliminate the second, independent basis for removal, namely Tavares' conviction of a controlled substance violation.
Petitioner has not presented his claim for Section 212(c) relief to any immigration official for determination. Thus, petitioner has not exhausted this claim, providing an independent basis for dismissal of this claim. See Ravindran v. INS, 976 F.2d 754, 764 (exhaustion requirement applies to immigration cases).
Assuming arguendo that Tavares applied for § 212(c) waiver and the Attorney General exercised his discretion and granted such relief as to his aggravated felony ground of removal, Tavares nonetheless remains removable on the basis of 8 U.S.C. § 1227(a)(2)(B)(i), for having been convicted of a controlled substance violation (based upon the May 18, 2000 possession of cocaine conviction). Tavares is removable solely on that basis. Thus, his contention that he is eligible for a Section 212(c) waiver is of no consequence to his current order of removal, or this instant habeas petition.
Once discretionary relief is granted pursuant to former Section 212(c) of the INA, Tavares would be statutorily prohibited from a cancellation of removal as to his second basis for removal — his controlled substance violation. See 8 U.S.C. § 1229b(c)(6).
Accordingly, I find that all of the grounds for relief raised by Tavares are without merit. Thus, the instant petition for a writ of habeas corpus should be denied and dismissed and Tavares' motion for a Stay of Removal should be denied. I so recommend.
Conclusion
For the reasons set forth above, I recommend that the Government's motion to dismiss be granted and Tavares' motion for a Stay of Removal be denied. 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).