Opinion
No. 02.-CV-74876-DT
March 26, 2003
OPINION
Petitioner, Engjull Thaqi, filed his Complaint for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus in this Court on December 9, 2002. On December 10, 2002, this Court referred the matter to Magistrate Judge Virginia M. Morgan for a report and recommendation. Magistrate Judge Morgan filed her Report and Recommendation (RR) on January 9, 2003. In the RR, Magistrate Judge Morgan construed the Petition as a petition for habeas corpus and recommends the Petition be denied because the Court has no basis for jurisdiction in this matter. Petitioner filed his objections to the RR on January 22, 2003. Respondents filed a Response to Petitioner's Objections on January 24, 2003. For the reasons set forth below, Petitioner's Objections are sustained, in part, and overruled, in part, the stay of removal shall be vacated, and the Petition shall be dismissed.
STANDARD OF REVIEW
The parts of the RR to which Plaintiff objects will be reviewed by the Court de novo. Thomas v. Halter, 131 F. Supp.2d 942, 944 (E.D. Mich. 2001). However, the Court "is not required to articulate all of the reasons it rejects a party's objections." Id. (citations omitted).
BACKGROUND
Petitioner came to the United States on July 13, 1978. He became a permanent resident on July 6, 1980. On December 27, 1993, Petitioner was charged with felonious assault in state court. Petitioner was found guilty of the charge after a jury trial. On December 6, 1995, Petitioner pled guilty to larceny from a person and breaking and entering, illegal entry without an owner's permission, in state court.
On February 5, 1997, the Immigration and Naturalization Service (INS) "charged" Petitioner as deportable because of his convictions for crimes of moral turpitude. At an INS hearing held on the matter, Petitioner conceded deportability, but "requested relief from deportation in the form of Asylum/Withholding of Deportation, and in the alternative, voluntary departure and consideration of a waiver under INA § 212(c), 8 U.S.C. § 1182(c)." (Pet. at ¶ 9). At a hearing held before an Immigration Judge (IJ), the IJ "refused to entertain" Petitioner's requests for relief from deportation and ordered that Petitioner be deported. Petitioner filed an appeal with the Board of Immigration Appeals (BIA), which was denied on July 17, 2002. The BIA also denied Petitioner's Motion for Reconsideration. Petitioner then filed the instant Petition.
DISCUSSION
The Petition in the case at bar is based upon the BIA's refusal to consider discretionary relief for Petitioner under 8 U.S.C. § 1182(c) (§ 212(c)). Several amendments to § 212(c) "have reduced the size of the class of aliens eligible for such discretionary relief." Immigration and Naturalization Service v. St. Cyr, 121 S.Ct. 2271, 2277 (2001). Petitioner argues that pursuant to the Supreme Court's holding in St. Cyr, the amendments to § 212(c) should not apply to him. Magistrate Judge Morgan, in the RR, recommends the Petition be denied because she concludes, pursuant to St. Cyr, that "there is no legal basis to conclude that there is jurisdiction to proceed with the habeas petition." (RR at 2).
Petitioner has raised two objections to Magistrate Judge Morgan's conclusion. First, Petitioner objects to Magistrate Judge Morgan's conclusion that there is no jurisdiction to proceed with the Petition. Second, Petitioner "objects to the conclusion that he is not entitled to [§] 212(c) relief because he was convicted after trial as opposed to a plea." (Pet'r's Objs. at 2). Respondents have filed a Response to Petitioner's Objections asserting that Magistrate Judge Morgan's conclusion regarding jurisdiction "is not accurate." (Resp't's Resp. at 1). Respondents, however, contend that while the Court does have jurisdiction, Petitioner is not entitled to the relief sought because he does not fit within the class of people entitled to such relief pursuant to the Supreme Court's decision in St. Cyr.
In St. Cyr, the Court addressed two questions regarding the impact of recent amendments to the Immigration and Nationality Act (INA). The first question concerned "the effect of those amendments on the availability of habeas corpus jurisdiction. . . ." St. Cyr, 12 S.Ct. At 2275. The second question concerned "the impact of the amendments on conduct that occurred before their enactment and on the availability of discretionary relief from deportation." Id. Petitioner's Objections in the case at bar mirror the questions addressed by the Supreme Court in St. Cyr.
The Supreme Court answered the first question by holding that the amendments at issue did not repeal habeas jurisdiction for questions of law. Id. at 2287. Therefore, Magistrate Judge Morgan's conclusion that there is no legal basis for jurisdiction is not accurate. Accordingly, Petitioner's first objection is sustained, and the Court agrees with Petitioner and Respondent that the Court does have jurisdiction in this matter pursuant to the Supreme Court's holding in St. Cyr.
The Court's answer to the second question is a bit more complicated. In essence, the Court held that the amendments did not affect aliens who were eligible for relief and who entered into plea agreements. The holding, however, did not extend to aliens, such as Petitioner in the case at bar, who were convicted after a trial on the matter. The Court reached its decision through discussion of plea agreements and stated:
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 expectation,' . . . to hold that . . . subsequent restrictions deprive them of any possibility of such relief.Id. at 2292 (internal citation omitted). The Court held that discretionary relief under § 212(c) "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 2293 (emphasis added).
As Respondent points out, several circuits, including the Sixth Circuit, have addressed the issue and concluded that the holding in St. Cyr does not apply to aliens who were convicted after trial on the matter. See, e.g., Asad v. Ashcroft, 2002 WL 31085178 (6th Cir. 2002) (the court distinguished St. Cyr from the case before it based on the petitioner being convicted after trial rather than having entered a guilty plea); Dias v. Immigration and Naturalization Service, 311 F.3d 456, 458 (1st Cir. 2002) (the court joined "the Seventh and Ninth Circuits in ruling that application of the new statutory 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) (emphasis added); Chambers v. Reno, et al., 307 F.3d 284 (4th Cir. 2002) (holding St. Cyr did not apply to the petitioner because he was convicted after trial and stating "[t]he key event in terms of St. Cyr's analysis of whether the new statute would produce a retroactive effect was the alien's decision to abandon his constitutional right to a trial and plead guilty to a deportable offense in reliance on prior law." id. at 290); Carey v. Ashcroft, 2002 WL 2004302 (3rd Cir. 2002) (holding petitioner "did not give up his constitutional right to a trial by jury; therefore, his argument based on St. Cyr is unavailing").
After careful review of the RR and the objections thereto, the Court declines to follow the recommendation in the RR for the reasons set forth above. The Court concludes that it does have jurisdiction over this habeas Petition and because Petitioner in the case at bar was convicted after trial rather than pleading guilty, the Supreme Court's holding in St. Cyr does not apply to him. Therefore, Petitioner's first objection to the RR is sustained, and his second objection to the RR is overruled. As discussed above, because Petitioner was convicted after a trial, St. Cyr does not provide him a basis for the relief sought; therefore, the Petition shall be denied, and the stay of removal shall be vacated.
On December 17, 2002, Magistrate Judge Morgan ordered the Petitioner's removal or deportation stayed in order to preserve the Court's jurisdiction over the matter.
A Judgment consistent with this Opinion shall issue forthwith.