Opinion
C.A. No. 03-175 S
October 30, 2003
Randy Olen, Esq, for Appellant Counselors
Dulce Donovan, Esq, for Appellee Counselors
Report and Recommendation
Jose Antonio Almeida ("Almeida" or "petitioner"), a citizen and native of Portugal, was admitted to the United States on December 30, 1969 as an immigrant. Following some encounters with the criminal justice system in this country, the Immigration and Naturalization Service ("INS") ordered that he be deported to his native land. In an effort to prevent his removal, Almeida, through counsel, filed with the Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The Government has filed a motion to dismiss the petition. Almeida has objected. This matter has 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.
On March 1, 2003, the INS ceased to existed as an independent agency and became a part of the newly created Department of Homeland Security. For ease of reference, this writer will refer to the Respondents as "INS" or the "Government."
Background
Jose Antonio Almeida was admitted to the United States as an immigrant on December 30, 1969. On July 22, 1994, Almeida pleaded nolo contendere to domestic assault charges in the Rhode Island state courts. For this offense, the court sentenced him to a one year suspended sentence. On December 9, 1996, Almeida pleaded nolo contendere to possession of cocaine in the Rhode Island state courts. The court sentenced him to a three year suspended sentence for this offense.The INS learned of Almeida's criminal convictions. On May 5, 1998, the INS issued Almeida a "Notice to Appear," alleging that he was deportable because (1) he was convicted of an aggravated felony — the 1994 domestic assault conviction, see 8 U.S.C. § 1227(a)(2)(A)(iii), and (2) he was convicted of a controlled substance violation — the 1996 cocaine conviction,see 8 U.S.C. § 1227(a)(2)(B)(i).
On October 12, 1999, a hearing commenced before an immigration judge ("IJ"). At the hearing, Almeida sought a § 212(c) waiver for the § 1227(a)(2)(A)(iii) charge (based on the domestic assault conviction) and a Cancellation of Removal for the § 1227(a)(2)(B)(i) charge (based on the drug possession conviction). The IJ found that Almeida was not eligible for a Cancellation of Removal, and ordered that he be deported. Almeida timely appealed the IJ's decision to the Bureau of Immigration Appeals ("BIA"). The BIA affirmed.
Almeida has now filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, contending that his due process and equal protection rights were violated because he was not permitted to receive § 212(c) relief and a Cancellation of Removal simultaneously. The Government has moved to dismiss the petition. Almeida has objected.
Discussion
Prior to April 1996, lawful permanent resident aliens who were deportable because they committed certain criminal offenses could apply for a waiver of deportation, known in immigration parlance as a § 212(c) waiver. A § 212(c) was an act of grace, once vested with the Attorney General of the United States. See e.g. Mattis v. Remo 212 F.3d 31, 32 (1st Cir. 2000) abrogated by INS v. St. Cyr, 533 U.S. 289 (2001); See also Leitao v. Reno, 311 F.3d 453 (1st Cir. 2002).In 1996, Congress changed § 212(c) when it passed the Antiterrorism and Effective Death Penalty Act of 1996, Pub. Law No. 104-132 ("AEDP A").See Leitao at 454. In AEDP A, Congress eliminated § 212(c) relief for a large number of criminal aliens. Id. In September 1996, Congress changed the legal landscape for § 212(c) relief yet again. Id. It passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Id. The IIRIRA eliminated § 212(c) relief altogether and replaced it with a new form of relief called a "Cancellation of Removal." See 8 U.S.C. § 1229(b). A Cancellation of Removal applies to a much smaller group of aliens who have committed criminal offenses.
Here, Almeida contends that he is entitled to apply for the two forms of relief, a § 212(c) waiver and a Cancellation of Removal, simultaneously. The BIA rejected his contentions, as do I.
The INS lodged deportation proceedings against Almeida due to his two criminal convictions, invoking 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1227(a)(2)(B)(i) as the statutory grounds for removal. The first ground, 8 U.S.C. § 1227(a)(2)(A)(iii), was based on Almeida's 1994 domestic assault conviction. This conviction occurred pre-AEDPA, and accordingly, pursuant to INS v. St. Cyr, 533 U.S. 289 (2001), petitioner is entitled to apply for Section 212(c) relief for the § 1227(a)(2)(A)(iii) ground for removal. Although entitled to a § 212(c) hearing with respect to this ground, the IJ did not conduct one. This was in error, but harmless since a second, independent ground for removal exists.
The second, separate and independent ground for removal, 8 U.S.C. § 1227(a)(2)(B)(i), was based on Almeida's second conviction, possession of cocaine. Almeida contends that for this ground of removal he is entitled to a Cancellation of Removal. See 8 U.S.C. § 1229(b). He is mistaken.
Assuming arguendo that the Attorney General granted the discretionary § 212(c) waiver for Almeida's first ground of deportation, the waiver is just that — it waives that ground for deportation. A Section 212(c) waiver does not eliminate or erase Almeida's underlying conviction. Matter of Balderas, 20 IN Dec. 389, 391 (BIA 1991) ("Since a grant of Section 212(c) relief "waives" the finding of . . . deportability rather than the basis of the [deportability], the crimes alleged to be the grounds for . . . deportability do not disappear from the alien's record for immigration puposes."). Thus, the conviction remains on Almeida's record.
The Cancellation of Removal statute, 8 U.S.C. § 1229(b), provides, 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. 8 U.S.C. § 1229b(a)(3).
Here, Almeida has been convicted of domestic assault, an aggravated felony. While the ground for removal based upon the domestic assault conviction has been waived, Almeida's underlying conviction of domestic assault still remains. This conviction bars him from seeking a Cancellation of Removal for the second ground of deportation.See 8 U.S.C. § 1229b(a)(3).
Moreover, Title 8, U.S.C. § 1229(b) provides, in relevant part:
An alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 1254(a) of this title or who has been granted relief under section 1182(c) of this title, as such sections were in effect before September 30, 1996
Section 212(c) waiver.
shall be ineligible for relief under this section. See 8 U.S.C. § 1229b(c)(6) (emphasis added). Thus, again assuming that the Attorney General granted discretionary relief to the petitioner pursuant to Section 212(c) for the first ground of removal, he then fails to qualify for a Cancellation of Removal. A Cancellation of Removal can not be granted to an alien who seeks and receives § 212(c) relief.See 8 U.S.C. § 1229(b)(c)(6).
Although § 212(c) relief may be granted for Almeida's first ground of deportation, it does not erase his underlying conviction of domestic assault, an aggravated felony. Since he has been convicted of an aggravated felony, Almeida is not eligible for a Cancellation of Removal for the second deportation charge lodged by the INS. Moreover, since Almeida may arguably seek and receive Section 212(c) relief for the first deportation charge, he may not then receive a Cancellation of Removal for the second deportation charge. See 8 U.S.C. § 1229b(c)(6).
Accordingly, since the INS followed the statutory guidelines established by the Congress, no due process or equal protection violation has been demonstrated. Almeida's instant petition for writ of habeas corpus should be dismissed. I so recommend.
Conclusion
For the reasons set forth above, I recommend that the Government's motion to dismiss be granted. 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).