Opinion
Civil Action No. 04-1441.
May 12, 2004
MEMORANDUM
Petitioner, a native and citizen of the United Kingdom, entered the United States on December 23, 1993 as a visitor. He was permitted to remain in the United States until June 22, 1994, but he remained here beyond that expiration date.
On September 23, 2000, he married Kimberly Mack, a United States Citizen.
His criminal history reveals that he was arrested by the Philadelphia police on November 11, 2000 and charged with aggravated assault, simple assault, reckless endangerment, possessing instruments of a crime, and terroristic threats. The charges were discharged on January 9, 2001.
Subsequently, on March 5, 2003, Petitioner was arrested again by the Philadelphia police and charged with possession of a controlled substance with intent to deliver and criminal conspiracy. The alleged controlled substances were cocaine and marijuana. He subsequently plead guilty to both charges in the Court of Common Pleas of Philadelphia, and on November 24, 2003, he was sentenced by Judge Carolyn Temin to not less than 11½ to 23 months on house arrest on the drug charge, and a consecutive four years probation on the conspiracy.
Approximately two months after he was sentenced, DHS officials took custody of him and issued a Notice of Intent to Issue a Final Administrative Order of Removal pursuant to 8 U.S.C. § 1228(b), dated January 14, 2004.
The notice advised Petitioner that he is not lawfully admitted for permanent residence (an alien illegally present in the United States) and is deportable because he was convicted of an aggravated felony. On February 20, 2004, the final administrative removal order was served on Petitioner.
Sometime prior to the removal proceedings aforesaid, Petitioner filed an I-485 to Register Permanent Residence or Adjust Status. It is not clear exactly when this was filed although the application attached as Exhibit "D" to the petition was dated November 1, 2000.
Nevertheless, he was told in July of 2001 by DHS that he had to comply with certain instructions within 84 days of July 26, 2001, or the failure to supply such information could be the basis for denial of his application. (Exhibit "E" of petition). Specifically, according to Petitioner (Statement of Fact 15), he was told to submit a request for a waiver of the ground of inadmissibility relating to his being HIV positive, which he did by submitting Form 601 (Exhibit "F") in October of 2001.
By August 12, 2003, Petitioner's attorney had submitted evidence which he thought would be sufficient to address Petitioner's treatment and the medical insurance covering it (See Exhibit "H").
Against this factual background, Petitioner contends:
1) that the final administrative removal order entered against the Petitioner on February 20, 2004 violated 8 U.S.C. § 1228, 8 C.F.R. § 238, because the Petitioner was placed in these expedited administrative removal proceedings as a non-permanent resident because of the Government's unlawful failure to adjudicate his application for adjustment of status (submitted in late 2000) and related request for waiver of inadmissibility (submitted in October 2001). In so doing the Government violated its legal responsibility to decide properly filed applications made by eligible applicants. 8 C.F.R. § 245; 2) that Due Process requires that the Government be enjoined from relying on its own illegal and inexcusable failure to adjudicate his application for adjustment of status to find that the Petitioner was "amenable" to the expedited removal procedures of 8 C.F.R. Part 238; and 3) that the Petitioner was denied his rights to due process of law, a fair trial, and representation by counsel in his conviction by guilty plea of possession of a controlled substance with intent to deliver and criminal conspiracy in the Philadelphia County Court of Common Pleas, dated November 24, 2003, in that the plea was not a knowing and voluntary plea because it was based on wrong advice of his criminal defense attorney that there would be no adverse immigration consequences to him in pleading guilty as he did.
First, the government responds in effect that under the facts of this case, no due process argument can be made when as late as August of 2003, Petitioner was still trying to supply the DHS with information necessary to obtain a waiver. Letters of Petitioner's counsel (see Petitioner's Exhibits "G" and "H") indicate the ongoing process toward obtaining a 601 waiver. Also, there is no prejudice where Petitioner cannot show (as he cannot in this case), that certain forms of discretionary relief would have been granted to him in a standard removal proceeding.
Second, the placement of Petitioner in expedited proceedings offered him the opportunity to rebut the charges against him, which he did not do.
The third argument of Petitioner has to do with his guilty plea. In this regard, the government has cited Drakes v. I.N.S., 330 F.3d 600 (3rd Cir. 2003). But the facts of Drakes are markedly different. Unlike Drakes, Petitioner has filed a timely collateral attack of the conviction upon which his deportation is based. Thus, the court feels that presently, Petitioner is entitled to relief pending the disposition of his collateral attack of his state conviction.
The nature of that relief will be the subject of a court HEARING on Wednesday, May 26, 2004 at 4:00 P.M. in Courtroom 14A. Counsel only need be present.
IT IS SO ORDERED.