Opinion
Civil No. 01-1234-KI
October 30, 2001
Michael T. Purcell, Portland, Oregon; Attorney for Plaintiff.
Michael W. Mosman, United States Attorney, District of Oregon, Ronald K. Silver, Assistant United States Attorney, Portland, Oregon; Attorneys for Defendants.
OPINION AND ORDER
Petitioner Oscar Tejeda-Sandoval filed a petition for a writ of habeas corpus (#1) under 28 U.S.C. § 2241. Tejeda-Sandoval is incarcerated on an Immigration and Nationalization Service ("INS") detainer. For the reasons below, I dismiss his petition.
FACTS
The Government provides the following facts from Tejeda-Sandoval's INS administrative file. Tejeda-Sandoval does not dispute the validity of any of the information.
Tejeda-Sandoval was born in Mexico and is a citizen of Mexico. He became a lawful permanent resident of the United States on October 4, 1989. On July 5, 1991, Tejeda-Sandoval pleaded guilty to the transportation and sale of a controlled substance in California. On May 16, 1994, he pleaded guilty in California to the possession of a controlled substance for sale. Tejeda-Sandoval was sentenced to a total prison term of eight years.
On January 16, 1998, at the end of Tejeda-Sandoval's prison sentence, the INS placed him in removal proceedings. The Immigration Judge ("IJ") ordered Tejeda-Sandoval removed from the United States on February 17, 1998. Tejeda-Sandoval waived his right to appeal and requested deportation. The INS deported Tejeda-Sandoval on February 19, 1998.
He was apparently paroled before serving the full term.
The INS learned that Tejeda-Sandoval illegally reentered the United States. On January 4, 2000, the INS issued a Notice of Intent/Decision to Reinstate the Prior Order of Deportation. On January 25, 2000, Tejeda-Sandoval was indicted for a violation of 8 U.S.C. § 1326(a), illegal reentry with a prior aggravated felony. The INS placed a detainer with the United States Marshals Service, who took custody of Tejeda-Sandoval on January 27, 2000. He was released to the custody of the INS on September 7, 2000. The INS issued a Warrant of Removal/Deportation on September 13, 2000, and deported Tejeda-Sandoval on September 22, 2000.
On April 26, 2001, the INS arrested Tejeda-Sandoval after the Drug Enforcement Agency informed the INS of his illegal reentry. The INS issued a Notice of Intent/Decision to Reinstate Prior Order of Deportation under § 241(a)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). On August 15, 2001, the United States Marshals Service released Tejeda-Sandoval to the custody of the INS. On August 16, 2001, the INS reinstated the prior Order of Deportation and issued a Warrant of Removal.
Tejeda-Sandoval filed his petition for a writ of habeas corpus on that same day. He asks me to require defendants to allow him to proceed with an application for relief from deportation under former § 212(c) of the Immigration and Nationality Act. Defendants believe that amendments to that act have entirely withdrawn their ability to waive deportation of aliens previously convicted of aggravated felonies.
DISCUSSION
I. Jurisdiction
Defendants contend that aliens can only challenge their removal orders by petitioning the appropriate court of appeals. It argues that Castro-Cortez v. Immigration and Naturalization Service, 239 F.3d 1037 (9th Cir. 2001), holds that a district court does not have jurisdiction to hear a petition for a writ of habeas corpus in a reinstatement case.
Castro-Cortez holds that § 241(a)(5) of the IIRIRA, which reinstates orders of removal with no right to a hearing before an IJ, did not apply to five aliens who reentered the United States before IIRIRA became effective. In coming to this conclusion, the court considered its jurisdiction over two of the cases in which the aliens filed their petitions for writs of habeas corpus in a district court rather than in the appellate court, as the statute requires. Immigration and Nationality Act ("INA") § 242(b)(9). The circuit court decided to apply a transfer statute, 28 U.S.C. § 1631, transferring jurisdiction from the district court to the circuit court when a petitioner files in the wrong court. In analyzing the application of the transfer statute, the court noted that as a prudential matter, it requires habeas petitioners to exhaust all available judicial remedies before seeking relief under § 2241.
"Prudential limits, like jurisdictional limits and limits on venue, are ordinarily not optional. The district court was not authorized to hear these petitions under § 2241 because direct review [to the circuit court] was available." Id. at 1047. Consequently, application of the transfer statute was warranted, giving the appellate court had proper jurisdiction.
The case relied on by Tejeda-Sandoval for the particular relief he requests, Immigration and Naturalization Service v. St. Cyr, ___ U.S. ___, 121 S.Ct. 2271 (2001), also addresses the appropriateness of habeas relief in this context and was decided six months after Castro-Cortez. The Court concluded that habeas jurisdiction under § 2241 was not repealed by IIRIRA and the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Id. at 2287. It also discussed the statutory sections consolidating judicial review of immigration proceedings into one action in the court of appeals, but distinguished the difference between judicial review and the more limited remedy of habeas corpus. Id. at 2285-87. Moreover, the petitioner in St. Cyr filed his § 2241 habeas petition in the district court and not in the court of appeals.
There is no discussion in St. Cyr of the factual distinction relied upon by defendants between removal orders and reinstatement of removal orders. I conclude that St. Cyr has removed all precedential value on this point from Castro-Cortez. Thus, I have jurisdiction over Tejeda-Sandoval's habeas petition.
II. Section 212(c) Relief
Immigration laws have been amended several times over the years. Section 212(c) gave the Attorney General broad discretion to admit excludable aliens. It was interpreted by the Board of Immigration Appeals ("BIA") to authorize permanent resident aliens with lawful unrelinquished domiciles of seven consecutive years to apply for a discretionary waiver from deportation. This became increasingly important as Congress broadened the range of deportable crimes.
Studies show that just over half of the applications for a waiver from deportation which reached a final decision between 1989 and 1995 were granted. St. Cyr, 121 S.Ct. at 2276-77.
Congress amended § 212(c) in 1990 to preclude from discretionary relief anyone convicted of an aggravated felony who had served a term of imprisonment of at least five years. In 1996, Congress passed AEDPA which identified a broad set of offenses for which conviction would preclude all relief. Also in 1996, Congress passes IIRIRA which repealed § 212(c) and replaced it with a section giving the Attorney General the authority to cancel removal for a narrow class of inadmissible or deportable aliens. The class does not include anyone previously convicted of an aggravated felony. Id. at 2277. Tejeda-Sandoval's drug convictions fall within the definition of an aggravated felony. Consequently, if you ignore the question of retroactive application of the amendment, he is not eligible for relief under § 212(c).
In St. Cyr, the Court considered the case of a habeas petitioner who became a lawful permanent resident in 1986. Ten years later, in 1996, he pleaded guilty to a state drug crime, making him deportable. Under the version of § 212(c) at the time, the petitioner would have been eligible for a waiver of deportation at the discretion of the Attorney General. The INS began removal proceedings against him in 1997, after the amendments to § 212(c) described above. The Attorney General did not believe that he had the discretion to grant a waiver. Id. at 2274. The Court held that "§ 212(c) relief remains available for aliens, like [habeas petitioner], whose convictions were obtained through plea agreements and who, not withstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." Id. at 2293.
Defendants contend that Tejeda-Sandoval is not entitled to consideration for § 212(c) relief under St. Cyr. Under the former law, the Attorney General had discretion to waive deportation in cases where a convicted alien demonstrated that he had a lawful unrelinquished domicile in the United States for at least seven years. Defendants contend that at the time of Tejeda-Sandoval's guilty pleas in 1991 and 1994, he had been a lawful permanent resident for less than five years, and not for the required seven years. Thus, defendants contend that Tejeda-Sandoval was not eligible for § 212(c) relief at the time of his guilty pleas and cannot be eligible under the holding in St. Cyr.
Tejeda-Sandoval argues that the INS did not begin deportation proceedings until several years after he entered his second guilty plea, and more than seven years from when he became a lawful permanent resident. He contends that the time before the INS acted should count toward the seven year requirement. He notes that an alien in deportation proceedings who appeals an order of deportation and awaits appellate review accrues time toward the seven year residency requirement during the period before the BIA's final administrative order.
St. Cyr bases its holding on a retroactivity analysis that questions "whether the new provision attaches new legal consequences to events completed before its enactment." Id. at 2290 (internal quotation omitted). The Court considered the consequences of pleading guilty to a charge that, when the plea was entered, did not preclude the alien from seeking discretionary relief under § 212(c). It noted that a retroactive application of the amendment upset the quid pro quo between the criminal defendant and the government. Preserving the possibility of § 212(c) relief would be a principal benefit sought by defendants in deciding whether to accept a plea offer or proceed to trial. Id. at 2291.
Moreover, the Court was clear in limiting its holding to people who would have been eligible for § 212(c) relief at the time of the plea under the law then in effect. Id. at 2293. Tejeda-Sandoval is not one of those people because he did not have seven years of residency at that time. St. Cyr does not apply to him.
I reviewed the Bureau of Immigration Appeals decisions that Tejeda-Sandoval provided at the argument but am not persuaded by them in light of the clear language in St. Cyr.
CONCLUSION
Tejeda-Sandoval's motion for a temporary restraining order (#2) is moot. His petition for a writ of habeas corpus (#1) is dismissed. The stipulated stay of deportation is lifted.
IT IS SO ORDERED.