Opinion
No. 01-CV-4715 (FB) (SAC)
June 17, 2003
JAMIE A. FORMAN, Esq., LORI B. LESKIN, Esq., Kay Scholer, LLP, New York, NY, for the Petitioner.
ROSLYNN R. MAUSKOFF, Esq., United States Attorney, By: STEVEN J. KIM, Esq., Assistant United States Attorney, Brooklyn, NY, for the Respondent.
MEMORANDUM ORDER
Pursuant to 28 U.S.C. § 2241, Issac Mancheno Gomez ("Mancheno"), a citizen of Ecuador, filed a writ of habeas corpus challenging a final order of removal. At issue is whether Mancheno is ineligible for relief under former § 212(c) of the Immigration and Naturalization Act ("INA") because he has served more than five years in prison. The Court concludes that Mancheno is eligible for relief and remands to the Immigration and Naturalization Service ("INS") with instructions to entertain Mancheno's request for discretionary waiver.
I.
Mancheno was admitted to the United States as a lawful permanent resident alien in 1976. In 1990, he pled guilty to a state charge of criminal sale of a controlled substance in the second degree (N.Y. Penal Law § 220.41). His conviction carried a sentence of forty-two months to seven years' incarceration. Prior to sentencing, Mancheno absconded. Several years later, he either turned himself in or was caught — the record before the Court does not disclose which — and on May 31, 1996, he was sentenced to a term of six years to life and commenced his imprisonment.
On April 1, 1997, the INS instituted removal proceedings. On August 28, 1997, following two days of hearings, an Immigration Judge ("IJ") ordered Mancheno removed from the United States to Ecuador. The IJ found that Mancheno was not eligible for discretionary relief under § 212(c). See Order of the Immigration Judge, August 28, 1997. The IJ's Order reflects that on August 28, 1997, Mancheno waived his right to appeal the removal order to the BIA. Id.
On or about September 28, 2000, Mancheno moved the INS to reopen his removal proceedings for the purpose of seeking a § 212(c) waiver. At the time, he had been in prison for approximately four years and four months. Without explanation, the IJ denied his motion as "being untimely filed." Order of the Immigration Judge, October 18, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect. INS v. St. Cyr, 533 U.S. 289, 326 (2001).
The parties also agree that at the time of Mancheno's 1990 guilty plea, "the law then in effect" was as follows: First that discretionary relief under § 212(c) was available to aliens who, at the time they sought § 212(c) relief, had been lawfully admitted for permanent residence and had accumulated seven consecutive years of "lawful unrelinquished domicile"; second, that notwithstanding lawful permanent residence and seven years of unrelinquished domicile, aliens who had been convicted of an aggravated felony and who, at the time of their request for § 212(c) relief, had sewed five years' imprisonment were precluded from eligibility. See 8 U.S.C. § 1182 (c); Buitrago-Cuesta v. INS, 7 F.3d 291, 295-96 (2d Cir. 1993) (five year period of incarceration measured as of date alien seeks § 212(c) relief).2
It is undisputed that on August 28, 1997, when he was erroneously found to be ineligible for § 212(c) relief, Mancheno was a lawfully admitted permanent resident, had satisfied the seven years' unrelinquished domicile requirement, had been convicted of an aggravated felony, and had sewed approximately fifteen months in prison. What is in dispute is whether Mancheno is ineligible to seek discretionary relief under § 212(c) based on application of the five-years' imprisonment rule. Citing Buitrago-Cuesta for the proposition that the five-year period of incarceration accrues during the "pendency of administrative appeals," Buitrago-Cuesta, 7 F.3d at 296, respondents contend that an alien's motion to reopen an order of removal should extend the period for calculating the alien's length of imprisonment until such time as the motion to reopen is resolved. This argument is not persuasive.
In Buitrago-Cuesta, the II denied the alien's request for § 212(c) relief and the five-year mark passed while the alien's appeal was pending before the BIA. Finding that the five-year period continues to accrue during the "pendency of administrative appeals," the court concluded that the alien was ineligible for § 212(c) relief. Buitrago-Cuesta, 7 F.3d at 296. Unlike with Mancheno, the IJ's removal decision in Buitrago-Cuesta was found to be correct, so the issue of the effect on the five-year rule on a subsequent motion to reopen simply did not arise.
Recent district court cases have held that the time spent in prison following an erroneous decision by an IJ should not count against a petitioner. See Greenidge v. INS, 204 F. Supp.2d 594 (S.D.N.Y. 2001); Lara v. INS, No. 3:00-CV-24DJS, 2000 U.S. Dis. LEXIS 21522 (D. Conn. November 30, 2000). As the court in Greenidge reasoned:
[ Buitrago-Cuesta] does not suggest what result should be reached where, as here, the IJ's decision subsequently proves to be incorrect. . . . [I]t is only because the IJ reached a decision adverse to petitioner that the proceedings were extended and petitioner's incarceration passed the five-year mark before the merits of his Section 212(c) application could be addressed. . . . [N]othing in the language of Buitrago-Cuesta . . . mandates such a result[.]Greenidge, 204 F. Supp.2d at 598; see also Lara, 2002 U.S. Dist. LEXIS 21522, at *8. But see Madero-Lora v. McElroy, No. 02-CV-0309, 2002 WL 1766450, at *2 (S.D.N.Y. July 31, 2002) (court considered BIA's denial of motion to reopen as a "final order" for purposes of computing petitioner's period of incarceration). Greenidge was followed by Judge Weinstein in Bernard v. INS, No. 02-CV-2832 (E.D.N.Y. Sept. 12, 2002) ("it seems to be more equitable and in accordance with the constitutional requirements to treat the facts nunc pro tunc as of the time of the original hearing").
Mancheno had been imprisoned only approximately fifteen months when the IJ incorrectly found him to be ineligible for § 212(c) relief. He promptly moved to reopen the removal proceedings upon the issuance of the Second Circuit's St. Cyr decision, a motion necessitated only by the IJ's erroneous decision. Were the Court to accept respondents' position, the BIA could eliminate the possibility of § 212(c) relief to those who were otherwise eligible simply by delaying its decision to reopen until the alien had served five years in prison, which is precisely what appears to have happened here. Fairness and logic require that the Court reject such a result.
III.
Finally, the Court does not accept the contention that venue is proper in the Eastern District of Pennsylvania because Mancheno is presently in INS custody there. Because all the material events regarding Mancheno's deportation occurred in the Eastern District of New York, traditional venue considerations favor this district. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 493 (1973). Mancheno's only connection to Pennsylvania results from the INS's discretionary decision to house him in a Pennsylvania detention center for the past year.
As to respondents' assertions that the Attorney General is not a proper respondent because he does not have custody of Mancheno and that the INS District Director in Philadelphia is the only proper respondent, the Court notes that the Attorney General is considered a proper custodian for habeas purposes. See Lee v. Ashcroft, 216 F. Supp.2d 51, 54 (E.D.N.Y. 2002) ("The Attorney General has the power to produce the petitioners, remains the ultimate decision-maker as to matters concerning the INS, and is commonly designated a respondent in these cases, even when personal jurisdiction over the immediate custodian clearly lies") (quoting Henderson v. INS, 157 F.3d 106, 126 (2nd Cir. 1998). Further, a district court may exercise personal jurisdiction over the Attorney General through his representative, the United States Attorney for the particular district. See id.