Opinion
Civil Action No. 04-785.
June 23, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a counseled Petition for Writ of Habeas Corpus filed by the Petitioner, Clive James ("Petitioner"), pursuant to 28 U.S.C. § 2241. For the reasons that follow, it is recommended that the Petition should be denied and dismissed with prejudice and without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus, the Response thereto, and the exhibits attached to those pleadings.
Petitioner, a native and citizen of Jamaica, was admitted to the United States as a lawful permanent resident on May 20, 1978, when he was nine years old. On February 5, 1996, Petitioner was arrested for possession with intent to deliver marijuana and criminal conspiracy to possession with intent to deliver a controlled substance. He pled guilty in September of 1996, and was sentenced on October 2, 1996 to three to six years' incarceration. Petitioner served fourteen months of his sentence then six months in boot camp and was released in May, 1998.
On April 30, 1999, the Immigration and Naturalization Service ("INS") issued Petitioner a Notice to Appear, advising Petitioner that he was eligible for removal or deportation from the United States due to his 1996 convictions. Petitioner appeared for a hearing before Immigration Judge Paul Grussendorf ("IJ Grussendorf") on October 2, 2000, and argued that he was not removable on the basis of his convictions. IJ Grussendorf denied Petitioner's argument, and upheld the charge that he was removable from the United States pursuant to 8 U.S.C. § 1227 (a)(2)(B)(i) for his drug offense convictions. IJ Grussendorf also found that the 1996 convictions qualified as aggravated felonies defined by 8 U.S.C. § 1101(a)(43)(B), and found Petitioner also removable for being an aggravated felon. Resp., Ex. 2, p. 3. IJ Grussendorf also found that Petitioner did not qualify for any relief from removal such as asylum, withholding of removal, or protection under the Convention Against Torture Act. Id. at 4. Petitioner was therefore ordered removed or deported. Id.
The Immigration and Naturalization Service ("INS") was incorporated into the Department of Homeland Security on March 1, 2003, and INS responsibilities are now divided among the Bureau of Immigration and Customs Enforcement ("BICE"), the Bureau of Citizenship and Immigration Services, and the Bureau of Customs and Border Protection. The BICE is responsible for carrying out deportation in the instant case.
Petitioner appealed to the Board of Immigration Appeals ("BIA"). On May 6, 2002, the BIA affirmed the IJ's decision without opinion. Petitioner filed a Motion to Reopen, arguing that he was eligible for a section 212(c) waiver of removal based upon the United States Supreme Court case of St. Cyr v. INS, 121 S.Ct. 2271 (2001), which was decided while his appeal was pending before the BIA. On September 26, 2003, the BIA denied the Motion to Reopen, holding that Petitioner was not entitled to 212(c) relief because St. Cyr applied only to convictions rendered prior to April 24, 1996, the effective date of the AEDPA, and not the date of the underlying conduct which led to the convictions. See Pet. Ex. D.
Petitioner was arrested on February 5, 1996, pled guilty in September, 1996, and was sentenced on October 2, 1996.
Petitioner was taken into custody by BICE agents on February 17, 2004, and on February 24, 2004, Petitioner filed the instant Petition. Through this Petition, Petitioner challenges his order of deportation on the basis that he should have been allowed to seek a discretionary waiver of deportation pursuant to former Section 212(c) of the Immigration and Nationality Act of 1952. Petitioner's claim is that he was wrongly denied this relief because section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was applied to him retroactively. On February 25, 2004, the Honorable Timothy J. Savage granted a stay of removal in order for the Court to consider the Petition. The Honorable Cynthia M. Rufe referred this Petition to me for preparation of a Report and Recommendation on April 16, 2004.
Respondents contend that the instant Petition should be denied and the stay of removal entered by Judge Savage should be lifted in order that Petitioner may be removed from the United States.
II. DISCUSSION.
This Court has jurisdiction pursuant to 28 U.S.C. § 2241 (c) to review an alien's removal order, but the scope of review is limited to questions of constitutional and statutory law. Bakhtriger v. Elwood, 360 F.3d 414 (3d Cir. 2004). Petitioner argues that the BIA reached a clearly erroneous conclusion by failing to evaluate the basis for removal properly, ignoring its own precedents, and failing to follow Third Circuit precedent. Petitioner seeks relief for the following reasons: (1) AEDPA section 440(d) cannot be applied to Petitioner's case because it would constitute an improper retroactive elimination of section 212(c) relief in violation of congressional intent and the presumption against retroactivity; and (2) the application of AEDPA section 440(d) denying the opportunity to seek section 212(c) relief would constitute a violation of due process in the retroactive application of law.
Petitioner's first argument is that AEDPA section 440(d) cannot be applied to his case because it would constitute an improper retroactive elimination of section 212(c) relief in violation of congressional intent and the presumption against retroactivity. Petitioner attempts to forge new law in this Circuit by claiming that the time of the alien's criminal conduct is the measuring point for determining which statute is applicable. For support, Petitioner relies on INS v. St. Cyr, 533 U.S. 289 (2001), in which the Supreme Court stated that there is "a clear difference for purposes of retroactivity analysis between facing possible deportation and facing certain deportation." See Br. in Supp. Pet. at 11 (quoting St. Cyr, 533 U.S. at 325 (citations omitted)). In St. Cyr, the United States Supreme Court examined the issue of whether the 1996 repeal of section 212(c) waiver was applicable to an alien criminal who pleaded guilty while section 212(c) was still in effect. The Court held:
INA section 212(c) is a provision through which a deportable alien could seek relief through deportation. The original version of 212(c) granted the Attorney General broad discretion to waive deportation. Salamone v. Dep't of Homeland Security, No. 03-5622, 2004 WL 503544, at *3 (E.D. Pa. Feb. 5, 2004). This allowed the Attorney General to grant discretionary waiver of an alien's deportability if the alien was a lawful permanent resident with a lawful, unrelinquished domicile of seven consecutive years. Id. (citing St. Cyr, 533 U.S. at 314-315). The AEDPA was passed on April 26, 1996, and rendered any alien convicted of an aggravated felony or drug offense, regardless of prison time served, ineligible for waiver of the alien's deportability. Id. (citing St. Cyr, 533 U.S. at 297;Sandoval v. Reno, 166 F.3d 225, 228 (3d Cir. 1999); Hartman v. INS, 255 F. Supp.2d 510, 514 (E.D. Pa. 2003); AEDPA § 440(d), Pub.L. No. 104-132, 110 Stat. 1214 (1996)). Effective April 1, 1997, Congress passed the Illegal Immigrant Reform and Immigrant Responsibility Act ("IIRIA"), which repealed section 212(c).Id.
that § 212(c) relief 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.St. Cyr, 533 U.S. at 326 (emphasis added).
Petitioner contends that when he committed the drug crimes on February 5, 1996, he relied on the availability of a section 212(c) defense to deportation. According to Petitioner, the law as it existed on February 5, 1996 when he committed the crimes and was arrested only provided for the possibility of deportation, and Congress' repeal of 212(c) relief altered the character of his relief to become certain deportation. Thus, Petitioner contends that this change in the law had an unconstitutional retroactive legal impact on him. St. Cyr, 533 U.S. at 325.
Respondents note that, while there are no Third Circuit cases directly on point to address Petitioner's argument that St. Cyr applies to him because his criminal conduct took place before the AEDPA was enacted in 1996, other courts examining this issue have rejected Petitioner's argument that the operative date under St. Cyr is the date that an alien commits a crime. See Domond v. INS, 244 F.3d 81, 85 (2d Cir. 2001) (stating "section 440(d) imposes no new legal consequences on aliens . . . whose criminal conduct predates AEDPA, but whose convictions come after AEDPA's enactment . . . Upon conviction, the punishment for the underlying criminal conduct was and remains some term of imprisonment plus deportation."); Brzuszek v. McElroy, 275 F. Supp.2d 442, 449 (S.D.N.Y. 2003) ("[t]he Government argues persuasively that the relevant date is not that on which the criminal acts were committed but on the date on which the petitioners pleaded guilty"). The Brzuszek court also stated "[u]nlike the facts in St. Cyr, the petitioners in this case did not plead guilty at a time when they could have factored any likelihood of receiving Section 212(c) relief into their decision to plead guilty." Id. at 451. Following this persuasive authority, at the time that Petitioner pled guilty, he could not have factored the likelihood of receiving section 212(c) relief into his decision to plead guilty. It further strains credulity to consider Petitioner's argument that he committed his drug crimes in 1995 with the understanding that he had section 212(c) relief available to him. Thus, Petitioner is not entitled to a waiver of deportation because AEDPA section 440(d) is applicable to his case and does not constitute an improper retroactive elimination of section 212(c) relief.
As previously established, when Petitioner committed the drug offenses for which he pled guilty, he had the ability to defend his deportation case under section 212(c). At the time that Petitioner pled guilty, however, the law had changed and Petitioner no longer enjoyed section 212(c) protection. Petitioner argues without supportive authority, that:
[t]o withdraw the fundamental defense to deportation embodied in a 212(c) application violates Due Process. It constitutes a gross miscarriage of justice and a "harsh and oppressive" result. It violates the "settled expectations" doctrine that applies to statutory violations of the retroactive impact of legislation in such a fashion as to constitute a violation of Due Process.
Mem. Law in Supp. Pet. at 14. Despite Petitioner's argument, the fact remains that he has been able to appeal at each step of the deportation proceedings, and section 212(c) relief was not available to him at the time he entered his guilty plea. Thus, application of AEDPA section 440(d) denying Petitioner any opportunity to seek section 212(c) relief does not constitute a violation of due process.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of June, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 should be DENIED and the Order staying Petitioner's deportation entered February 25, 2004 should be vacated, and Petitioner shall be immediately released from detention to the supervision of the BICE pending deportation. There is no probable cause to issue a certificate of appealability.