Opinion
01 Civ. 9227 (RMB)(FM)
May 16, 2002
REPORT AND RECOMMENDATION
I. Introduction
Pro se petitioner Eddy Abraham Martinez ("Martinez") seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, following a Board of Immigration Appeals ("BIA") decision dismissing his appeal from a February 25, 2000 decision by an Immigration Judge ("IJ") that he is removable and ineligible for a discretionary stay of removal pursuant to former section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182 (c) ("Section 212(c)"). For the reasons set forth below, both Martinez's petition and the accompanying motion to stay his removal should be denied.
II. Facts
A. Background
Martinez is a thirty-seven year old citizen of the Dominican Republic. On March 6, 1982, at the age of seventeen, he was admitted to the United States as a lawful permanent resident. (R. 86-87, 147, 228). Martinez has three teenage children who were born in the United States. (R. 155-57). In addition, his wife and parents are naturalized citizens. (R. 151-53, 159). In a letter written to the IJ, Martinez's family urged the IJ not to deport Martinez, citing the hardship that it would create for his family. (R. 158).
Martinez faces deportation and the prospect of being separated from his family because of a drug conviction in this District. On December 8, 1989, following a jury trial, Judge Robert Ward sentenced Martinez (under the name Antonio Guzman) to concurrent 120-month terms on one substantive count of possession of heroin with intent to distribute it and one count of conspiracy to distribute heroin. (R. 195-99). Although Martinez filed a notice of appeal from the judgment of conviction, the Second Circuit subsequently dismissed his appeal on May 18, 1990, for want of prosecution. (R. 217).
On April 4, 1998, after serving 105 months of his sentence, Martinez was released into INS custody. (R. 148). He has since been released by the INS on bond. (R. 144).
In their papers, both Martinez and the Respondents appear to have assumed that the INS lodged a detainer against Martinez on September 11, 1990, while he was serving his criminal sentence. (See R. 25, 75; Return ¶ 4). Although the INS file contains a "Detainer Action Letter" bearing that date, it plainly indicates that the Bureau of Prisons, which issued the letter, was merely notifying the INS that Martinez was born outside the United States. (R. 11). In fact, the letter cautions the INS that if Martinez "is wanted . . . it will be necessary for you to forward a certified copy of your warrant to us, along with a cover letter stating your desire to have it lodged as a detainer." (R. 11). The earliest reference in the record to such a detainer appears in a May 20, 1997 Bureau of Prisons progress report. (R. 179). Even that report is silent, however, as to when, if ever, the detainer actually was lodged. (See remarks of IJ at R. 75 ("Well I don't have anything showing a detainer warrant was ever filed. . . . All I have is a letter to check on his status.")).
On February 27, 1998, while he was incarcerated at the Federal Correctional Institution in Oakdale, Louisiana, Martinez was served with an INS Notice to Appear, which charged that he was removable from the United States as an "aggravated felon" based upon his conviction in this District. (R-228-29). The following month, removal proceedings against Martinez commenced before an IJ in Louisiana. (R. 47-50). Those proceedings subsequently were adjourned several times to permit Martinez to secure counsel and so that venue could be transferred to New York following his release from INS custody. (R. 51-59).
The INS issued the Notice to Appear on February 20, 1998. (R. 228). That same day, the INS also issued a warrant for Martinez's arrest, which was served on him on April 3, 1998. (R. 189).
Once the proceedings resumed in New York, Martinez did not contest the facts establishing his removability. (R. 74). He nevertheless argued that he was entitled to be considered for a discretionary waiver pursuant to Section 212(c). (R. 65, 68). At an October 1, 1999 hearing, the IJ put the matter over until late February 2000 so that he could consider the effect of the Second Circuit's decision in Henderson v. INS, 157 F.3d 106, 130 (2d Cir. 2000), on Martinez's application for a discretionary waiver. (R. 82). In that case, the Second Circuit held that Section 212(c) relief remained available to aliens whose deportation proceedings had commenced before that provision was repealed. Henderson, 157 F.3d at 130.
At the October 1 hearing, Martinez's counsel also urged the IJ to rely on Judge Weinstein's decision in Pottinger v. Reno, 51 F. Supp.2d 349, 359 (E.D.N Y 1999), aff'd, 242 F.3d 367 (2d Cir. 2000) (table). (R. 81). In Pottinger, Judge Weinstein held that aliens who committed their crimes before the repeal of Section 212(c) should nevertheless be permitted to seek discretionary waivers of deportation because the legislation repealing the availability of such relief would otherwise be impermissibly retroactive. Id.
Following the October hearing, Martinez's counsel filed a brief in which he again urged the IJ to permit Martinez to seek Section 212(c) relief on the basis of Pottinger. (R. 100-04). On February 25, 2000, however, the IJ ordered that Martinez be removed from the United States "as an alien who has been convicted of an aggravated felony." (R. 43). In his decision, the IJ also observed that Martinez was not eligible for any discretionary relief because the cases that he relied on were "District Court cases" which were "not binding on [the INS]." (Id.).
The Second Circuit affirmed Judge Weinstein's decision in Pottinger after the IJ ordered Martinez's removal. In its unpublished decision, the court did not rely on the petitioner's commission of the aggravated felony prior to the repeal of Section 212(c), as Judge Weinstein had. Rather, the court based its decision on the considerably narrower ground that the denial of Section 212(c) relief would be impermissibly retroactive because the petitioner had entered his plea of guilty before the provision was repealed. Pottinger, 242 F.3d 367, 2002 WL 1864477, at *2 (2d Cir. Dec. 18, 2000).
Martinez's counsel appealed the IJ's decision to the Board of Immigration Appeals ("BIA") advancing essentially the same legal arguments he had made before the IJ. (R.10-14). In addition, Martinez filed a supplemental pro se brief in which he contended, among other things, that he was entitled to Section 212(c) relief, in accordance with the Second Circuit's decision in Bell v. Reno, 218 F.3d 86 (2d Cir. 2000), because his narcotics conviction preceded the effective date of the Immigration Act of 1990. (R. 8-9). Martinez also cited St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir. 2000), aff'd, 533 U.S. 289, 325, 121 S.Ct. 2271, 2293, 150 L.Ed.2d 347 (2001), a case in which the Second Circuit (and later the Supreme Court) held that aliens who entered pleas of guilty or nolo contendere prior to the repeal of Section 212(c) should be permitted to seek relief thereunder so as not to upset their settled expectations at the time of their pleas that discretionary waivers from deportation would remain available to them. Finally, Martinez also argued on the basis of In re Khourn, Interim Decision 3330, 1997 WL 706630 (BIA Oct. 31, 1997), that he "had settled expectations for a crime of moral turpitude." (R. 8-9). In Khourn, the BIA determined that a conviction for distribution, as opposed to mere possession, of narcotics subjected the respondent to deportation under a provision authorizing the deportation of aliens who were convicted of two crimes involving moral turpitude. 1197 WL 706630, at *1047. As the BIA observed, "[t]his question seldom arises as an issue of significance because a conviction for drug distribution in and of itself renders the alien . . . ineligible for relief." Id. at *1044.
On August 15, 2001, the BIA affirmed the IJ's decision. (R. 2-7). Based on the record before it, the BIA concluded that the removal proceedings against Martinez were officially commenced after the April 1, 1997 effective date of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, et seq. (1996), which repealed Section 212(c) in its entirety, and that the decision as to when to initiate those proceedings was properly within the discretion of the INS's District Director. (R. 3). The BIA further held that Martinez was ineligible for Section 212(c) relief because: (a) Henderson applied only to aliens whose deportation proceedings had commenced before April 24, 1996; (b) St. Cyr applied only to aliens who entered pleas of guilty or nolo contendere prior to AEDPA's April 24, 1996 enactment date; and (c) Bell applied only if an alien's conviction predated the passage of the Anti-Drug Abuse Act of 1988 ("ADAA"), Pub.L. No. 100-690, 102 Stat. 4181 (1988) (which made possession of narcotics with intent to distribute them an aggravated felony), and the alien received notice of his deportation proceedings before the effective date of the Immigration Act of 1990. (R. 3-4). The BIA found that Martinez did not meet any of these limited exceptions to the unavailability of Section 212(c) relief. (Id.).
Prior to the passage of IIRIRA, the INA provided for aliens to be expelled from the United States pursuant to "exclusion" and "deportation" proceedings. For cases commenced after April 1, 1997, there is now only a single "removal" proceeding. See 5 Charles Gordon, et al., Immigration Law and Procedure § 64.01[1] (2000). IIRIRA § 304(b), 110 Stat. 3009-597, replaced Section 212(c) with a provision, codified at 8 U.S.C. § 1229b, which permits an alien to apply for "cancellation of removal" unless, among other things, the alien has been convicted of an aggravated felony.
BIA member Lory Diana Rosenberg filed an opinion in which she concurred in part and dissented in part. Her opinion suggested that an alien who exercised his constitutional right to a trial, rather than pleading guilty, should still be eligible for Section 212(c) relief by extension of the reasoning underlying the Supreme Court's decision in St. Cyr. (R. 7). Nevertheless, because Martinez had served more than five years in prison for an aggravated felony, she concurred in the Board's ultimate conclusion that Martinez was ineligible for Section 212(c) relief. (R. 5).
In or around August 2001, Martinez filed a motion before the BIA to "reopen for cancellation of the charges for offense" under Khourn and In re Serna, Interim Decision 3188, 1992 WL 301779 (BIA Oct. 14, 1992). Martinez contended in his motion papers that the BIA, in arriving at its decision, had ignored several of the arguments in his supplemental brief. (Pet. Attach.). The disposition, if any, of this motion has not been reported to the Court.
D. Petition
Martinez's petition advances many of the same arguments raised before the BIA. In addition, he contends that he is entitled to relief under the Equal Protection Clause of the United States Constitution because aliens who entered pleas of guilty or nolo contendere prior to the repeal of Section 212(c) remain eligible to apply for Section 212(c) relief while those who instead went to trial are not. Finally, he argues that he should be considered for cancellation of removal. (See n. 3, supra).
III. Discussion
A. Standard of Review
A prisoner seeking habeas corpus relief under Section 2241 must show that "[h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). The petitioner bears the burden of making that showing by a preponderance of the evidence. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
B. Relevant Immigration Law
Under the INA, an alien convicted of an "aggravated felony" is removable from the United States. See INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). The ADAA expanded the term "aggravated felony" to include any "drug trafficking crime" as defined in 18 U.S.C. § 924. Section 924(c)(1)(D)(2), in turn, defines the term "drug trafficking crime" to include "any felony punishable under the Controlled Substances Act (21 U.S.C. [§] 801, et seq.)." Consequently, possession of heroin with intent to distribute it, in violation of 21 U.S.C. § 812 and 841, unquestionably constituted an aggravated felony by the time of Martinez's conviction on that charge in 1989.
At the time of Martinez's conviction, Section 212(c) afforded the Attorney General the discretion to waive the deportation of aliens in certain circumstances. Among other factors, the IJ hearing a case was authorized to take into account an alien's familial ties to the United States, the alien's duration of residence here, and the hardship that deportation would cause both the alien and the alien's family. Mojica v. Reno, 970 F. Supp. 130, 137 (E.D.N.Y. 1997). Although relief under Section 212(c) was discretionary, in the early 1990s it was granted slightly more than half the time. St. Cyr, 229 F.3d. at 410.
After the date of Martinez's conviction, the landscape of the United States immigration laws changed considerably. Three changes are of particular significance here. First, as BIA member Rosenberg recognized in her concurrence, Section 511 of the Immigration Act of 1990, Pub.L. No. 101-649, § 511, 104 Stat. 5052, amended Section 212(c) to proscribe the exercise of discretion in favor of an alien who had "been convicted of an aggravated felony and ha[d] served a term of imprisonment of at least five years." Second, Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 100 Stat. 1214 (1996) ("AEDPA"), barred aliens convicted of certain crimes from seeking a Section 212(c) waiver. Third, Section 304 of IIRIRA, 110 Stat. at 3009-597 (1996), repealed Section 212(c) in its entirety as of September 30, 1996. Despite this repeal, courts have held that Section 212(c) relief remains available to aliens in certain limited situations so that IIRIRA does not have an unforseen and impermissible retroactive effect. See, e.g., Henderson, 157 F.3d at 130; St. Cyr, 229 F.3d at 418.
The central question presented by Martinez's petition is whether a determination that he is ineligible to apply for Section 212(c) relief would violate the legal principles discussed in the cases prohibiting the retroactive application of the immigration law changes to aliens who were placed in deportation proceedings or who entered guilty pleas before Section 212(c) was repealed. As shown below, denying Section 212(c) relief to Martinez does not offend those constitutional principles.
Moreover, even if Martinez were to be considered for Section 212(c) relief, his application would have to be denied because he had served more than five years in prison on an aggravated felony charge by the time the INS instituted its removal proceedings against him.
C. Retroactivity
Whether an alien is removable or deportable as a consequence of one or more criminal convictions is a question of civil, not criminal law. Kuhali v. Reno, 266 F.3d 93, 112 (2d Cir. 2001). Nevertheless, even if the ex post facto doctrine governing criminal cases is inapplicable in the civil context, "the presumption against retroactive legislation is deeply rooted in our jurisprudence and embodies a legal doctrine centuries older than our republic." Id. at 111. As the Supreme Court has stated, "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." St. Cyr, 523 U.S. at 316, 121 S.Ct. at 2288. (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 (1994)).
In its decision in St. Cyr, the Second Circuit observed that an alien charged with a criminal offense prior to the passage of AEDPA and IIRIRA typically weighed the immigration consequences of a conviction carefully and would consider the availability of Section 212(c) relief in deciding whether to accept a plea bargain. St. Cyr, 229 F.3d at 418-19. For that reason, the court concluded that "AEDPA § 440(d) and IIRIRA § 304 would severely upset settled expectations were [they] applied retroactively to pre-enactment guilty pleas." Id. at 420. The Supreme Court echoed this sentiment on appeal, observing that it "would surely be contrary to 'familiar considerations of fair notice, reasonable reliance, and settled expectations'" to deny a Section 212(c) hearing to an alien who agreed to a plea bargain in the belief that an opportunity to seek a Section 212(c) waiver would be available. St. Cyr, 523 U.S. at 324, 121 S.Ct. at 2292 (quoting Landgraf, 511 U.S. at 270, 114 S.Ct. at 1499).
In this case, Martinez seeks to apply the reasoning of St. Cyr, to a factually inapposite situation because, rather than pleading guilty in reliance on Section 212(c), he instead chose to go to trial. However, in the absence of a plea of guilty or nolo contendere, this was obviously Martinez's only alternative once he was charged with having committed a crime. As the Second Circuit noted in its decision in St. Cyr:
[I]t is difficult to argue that barring eligibility for discretionary relief on the basis of pre-enactment criminal conduct — as opposed to a plea going to the guilt of a deportable crime — constitutes an impermissible retroactive application of a statute. Indeed, we agree that,
It would border on absurd to argue that these aliens might have decided not to commit drug crimes, or might have resisted the conviction more vigorously, had they known that if they were not only imprisoned but also, when their prison term ended, ordered deported, they could not ask for a discretionary waiver of deportation.
St. Cyr, 229 F.3d at 418 (quoting Jurado-Gutierrez, 190 F.3d 1135, 1150-51 (10th Cir. 1999)).
In at least two cases decided since the Second Circuit's decision in St. Cyr, judges in this District have concluded that aliens convicted of crimes after trial cannot seek Section 212(c) relief. First, in Lawrence v. INS, No. 00 Civ. 2154, 2001 WL 818141, at *6 (S.D.N.Y. July 20, 2001), Magistrate Judge Peck held that "[t]his Court is bound by the Second Circuit's St. Cyr . . . decision." Judge Peck also cited recent cases from the Fourth, Seventh, and Ninth Circuits reaching the same conclusion that aliens convicted after trial do not fall within the limited exception to retroactivity applicable to those who entered pleas of guilty or nolo contendere prior to the elimination of Section 212(c) relief. Id. More recently, in Disanto v. INS, No. 00 Civ. 4239, 2002 WL 10448, at *4 (S.D.N.Y. Jan. 3, 2002), Judge Lynch addressed the petition of an alien who argued that he should be permitted to seek a Section 212(c) waiver despite having been convicted on rape and related charges in 1990 after a trial. As Judge Lunch observed, the availability of that relief had been restricted in two ways, both of which apply equally here:
First, under § 511 of the Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 5052 (formerly codified at 8 U.S.C. § 1182(c) (1994)), enacted shortly after DiSanto's conviction, the Attorney General's power of discretionary waiver was repealed for, among others, aliens convicted of aggravated felonies who had served prison terms of at least five years. Second, in 1996, § 304 of IIRIRA made § 212(c) unavailable for anyone convicted of a broadened list of aggravated felonies. Under either enactment, DiSanto would have been ineligible for a waiver at the time of the IJ's 1999 ruling.
Id. at *2.
Judge Lynch held that the retroactive application of the first of these changes had been expressly approved in Buitrago-Cuesta v. INS, 7 F.3d 291 (2d Cir. 1993), which "remains good law." Disanto, 2002 WL 10448, at *3. In addition, although Judge Lynch recognized that the discussion of aliens who opted to go to trial in the Second Circuit's decision in St. Cyr was dictum, he noted that "it plainly was carefully considered dictum, which was also supported by the decision in Buitrago-Cuesta." Id. at *4.
The only jurist to reach a contrary conclusion was Judge Weinstein in Beharry v. Reno, 183 F. Supp.2d 584, 590 (E.D.N.Y. 2002). Faced with the compelling facts of that case, including the petitioner's residence in the United States since the age of seven, Judge Weinstein considered whether the INA, as amended, could be harmonized with international law. Judge Weinstein noted that the petitioner was ineligible for Section 212(c) relief — "at least as the appellate cases have so far indicated" — because his plea of guilty came after the enactment of IIRIRA and AEDPA. Id. at 603. Nevertheless, after a lengthy discussion of the applicable principles of international law, Judge Weinstein observed that the "most narrowly targeted way to bring the INA into compliance with international law requirements" would be to rule that waivers under INA § 212(h) (another hardship provision unavailable to lawful permanent residents convicted of aggravated felonies) must be made available to aliens who meet its "stringent requirements" and who have been convicted of a crime which first was categorized as an aggravated felony after they committed the crime. Id. at 605.
Suffice it to say, Martinez has never advanced an international law claim in connection with his own removal. Furthermore, the notion that an alien must have committed his crime after it was classified as an aggravated felony in order to be removable on that ground does not seem supported by the letter — or the spirit — of existing Second Circuit case law. See, e.g., Kuhali, 266 F.3d at 111 (retroactive redefinition of "aggravated felony" does not violate due process); Buitrago-Cuesta v. INS, 7 F.3d 291 (2d Cir. 1993) (holding that Congress intended to have Section 511 of the Immigration Act of 1990, which makes Section 212(c) relief unavailable to an alien who has spent more than five years in prison, apply retroactively); St. Cyr, 229 F.3d at 420 (because the petitioner in Buitrago-Cuesta was convicted after trial, rather than as the result of a guilty plea, St. Cyr "does not contradict our earlier ruling in Buitrago-Cuesta")).
Finally, as discussed in greater detail below, Martinez has not shown, nor could he, that the removal proceedings against him were commenced before 1996 so as to entitle him to a Section 212(c) hearing under Henderson. Martinez has previously argued that the INS proceedings against him should be deemed to have commenced on September 11, 1990, when a Detainer Action Letter was filed against him. (See A. 8, 15) ("[Martinez] was in proceedings as of that date"). As noted above, there is no indication that any warrant was lodged as a detainer at that time.
Moreover, even if this Court were to assume that a detainer was lodged in 1990, it is clear that more is required to bring an alien within the aegis of the INS. At that time, INS deportation proceedings were commenced by the service of an order to show cause. See Alanis-Bustamante v. Reno, 201 F.3d 1303,1305 n. 5 (11th Cir. 2000).
Following the 1996 amendments to the INA, the charging instrument is now a "notice to appear." Id. It is not necessary that an order to show cause or notice to appear be filed with the Immigration Court to initiate a proceeding. See Pena-Rosario v. Reno, 83 F. Supp.2d 349, 360 (E.D.N.Y) (proceedings commence when order to show cause is served on alien). Nevertheless, the charging instrument must, at a minimum, be served on the alien. Alanis-Bustamante, 203 F.3d at 1309 ("we think that when an order to show cause is served on the alien" and a warrant has previously been lodged, "[t]he combination of the two is enough to commence proceedings for purposes of determining the applicable law"); Wallace v. Reno, 194 F.3d 279 (1st Cir. 1999) ("when an order to show cause is served on the alien, the deportation process has effectively begun"). The mere service of a detainer action letter is no substitute for the issuance or service of a charging instrument. Oguejiofor v. Attorney Gen., 277 F.3d 1305, 1308 n. 2 (11th Cir. 2002) (holding that filing of detainer letter and fingerprinting of alien did not commence proceedings against him). Accordingly, because the undisputed facts show that the INS first issued its notice to appear in 1998, long after Martinez's conviction, the deportation or removal proceedings against him plainly were not commenced prior to his conviction. Henderson is therefore inapplicable.
Finally, Martinez cites Bell, 218 F.3d at 93-96, for the proposition that he should be allowed to have a Section 212(c) waiver hearing because his conviction predated the enactment of the Immigration Act of 1990. As the BIA correctly concluded, Bell bars a deportation or removal proceeding only when the alien's conviction occurred prior to the 1988 enactment of the ADAA and the deportation hearings commenced before the March 1, 1991 effective date of the Immigration Act of 1990. Bell, 218 F.3d 93-96. In this proceeding, Martinez is unable to meet either of these required showings.
E. Remaining Arguments
Martinez's citations to the BIA's decisions in Serna and Khourn are equally unavailing. Both decisions concern former INA § 241(a)(2)(A), 8 U.S.C. § 1251(a)(2)(A), which authorized the deportation of aliens convicted of one crime of moral turpitude within five years after their entry or two such crimes at any time. The definition of such crimes was of considerable importance because persons who were convicted of crimes involving moral turpitude generally could not establish "good moral character" and, therefore, were statutorily ineligible for relief from deportation. See Serna, 1999 WL 301779, at *580. Here, however, the INS seeks to remove Martinez under a wholly different provision of the INA. Accordingly, whether Martinez was convicted of a crime of moral turpitude is irrelevant.
In Serna, the BIA noted that a crime had to include an element of "evil intent or corruption in the mind" to constitute a crime of moral turpitude. 1999 WL 301779 at *581. In distinguishing such crimes from other less pernicious offenses, the BIA noted that "such crimes as importation, sale or possession of drugs, which are deemed to be quite serious and have harmful consequences, do not involve moral turpitude because evil intent is not an element of the offense." Id. at *582. Thereafter, however, in Khourn, the BIA concluded that the very crime with which Martinez was charged — a violation of 21 U.S.C. § 841(a)(1) — was a crime of moral turpitude. 1997 WL 706630 at *1047. Accordingly, even if "moral turpitude" were the controlling standard, Martinez would be ineligible for relief.
Martinez also cites Pottinger, arguing that he is being deprived of equal protection of the laws because similarly-situated aliens who entered pleas of guilty prior to the enactment of AEDPA and IIRIRA remain eligible for section 212(c) relief while he does not. (Pet. 2). In Pottinger, however, Judge Weinstein expressly declined to reach the petitioner's equal protection claim. 51 F. Supp.2d at 352.
The distinction about which Martinez complains was not created by Congress, but by the federal courts. In any event, even if Congress had intended that aliens who pleaded guilty to an aggravated felony would be treated differently than those who were convicted of such a crime after trial as a result of the 1996 revisions to the INA, its action would be constitutional so long as the distinction was supported by a "rational reason." See Domond v. INS, 244 F.3d 81, 87 (2d Cir. 2001) ("Distinctions between different groups of aliens are subject to rational basis review."). As a consequence, the Court need only divine some rational basis for the distinction. Id. Here, as cases such as St. Cyr confirm, there plainly is a rational basis for the distinction because aliens who pleaded guilty are likely to have relied on the availability of Section 212(c) relief in reaching their decision while those who went to trial cannot establish any such detrimental reliance. Martinez therefore cannot establish any equal protection violation.
Finally, Martinez claims for the first time in his petition that he is eligible for cancellation of removal pursuant to INA § 240, 8 U.S.C. § 1229b. Martinez cannot raise this claim now because he failed to assert it before the BIA and therefore has failed to exhaust his administrative remedies. See 8 U.S.C. § 1252(d). Furthermore, even if this claim were exhausted, Martinez does not qualify for cancellation of removal because he has been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(2) ("the Attorney General may cancel removal . . . if the alien — "has not been convicted of an [aggravated felony]."); Guerrero-Perez v. Reno, 242 F.3d 727, 728 (7th Cir. 2001) ("[a]n alien deemed to have committed an aggravated felony does not have the right to cancellation of removal.").
IV. Conclusion
For the foregoing reasons, Martinez's habeas petition should be dismissed and his application for a stay of removal denied.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Richard M. Berman, at the United States Courthouse, 40 Centre Street, New York, NY 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N Y 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Berman. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).