Summary
denying alien section 212(c) relief according to Second Circuit precedent, although lamenting the unfair result
Summary of this case from Salamone v. Department of Homeland SecurityOpinion
No. 99 Civ. 4512 (HB) (DFE)
February 13, 2003
AMENDED OPINION ORDER
On May 15, 2002, Magistrate Judge Eaton issued a Report and Recommendation ("RR") in the above-captioned case in which he recommended that this Court dismiss in its entirety the habeas petition ("petition") of Pablo Roberto Ortega ("petitioner"), brought pursuant to 28 U.S.C. § 2241, and vacate the order enjoining petitioners s deportation that I entered on January 5, 2000. Petitioner filed written objections to some portions of the RR within the statutory 10-day period. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). While the government did not file objections to the RR, it submitted a letter brief responding to petitioner's objections on June 7, 2002. For the reasons set forth in detail below, petitioner's section 2241 habeas petition is denied, and my January 5, 2000 order staying his deportation is vacated.
Standard of Review
The Court may adopt those portions of an RR to which no specific objection is made, provided that those portions are not clearly erroneous. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). However, when an objection is made to a portion of a magistrate's report, the Court must make a de novo determination as to those portions. 28 U.S.C. § 636(b)(1); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989).
I. BACKGROUND
Petitioner, a native and citizen of the Dominican Republic, entered the United States on or about June 18, 1989, as the fiance of a United States citizen. (Certified Administrative Record, 46, 63, 87). Petitioner was married to his wife, Luz Maria Urena, on July 20, 1989, and his status was adjusted to Lawful Permanent Resident Alien effective November 7, 1989. (Id. 46).
On December 2, 1993, following a jury trial in the United States District Court, District of Connecticut, a jury found petitioner guilty of conspiracy to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 846, and of possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). On February 2, 1994, petitioner was sentenced to a prison term of 60 months. (Id. 75, 76-77, 78). Petitioner appealed his criminal conviction on February 3, 1994, and the Second Circuit affirmed the conviction on February 26, 1995. (Id. 76). Further, petitioner filed a habeas petition under 28 U.S.C. § 2255 on June 12, 1996, which petition was denied on October 4, 1996. (Id. 76-77). Petitioner served 52 months in prison.
On or about January 23, 1998, petitioner was personally served with a Notice to Appear ("NTA") at the Federal Correctional Institution at Oakdale, Louisiana, charging him with being subject to removal under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), as amended, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. IV 1998), on the ground that, after entering the United States, petitioner had been convicted of an aggravated felony as defined under section 101(a)(43)(B) of the INA, namely, illicit trafficking in a controlled substance. (Id. 87-88).
Petitioner's removal proceedings began on February 3, 1998, in Oakdale, Louisiana, at which time his proceedings were adjourned in order to allow him to obtain counsel. (Id. 51-55). Petitioner's hearing was ultimately held on March 20, 1998 in Oakdale. (Id. 56-63). At the hearing, petitioner, represented by counsel, conceded the factual allegations in the NTA except for the allegation that he had been convicted of possession with intent to distribute cocaine, and denied the charge of removability. (Id. 63). However, the INS submitted into evidence a certified copy of the judgment in United States v. Pablo Roberto Ortega, 92 Cr. 00092-02, as well as a copy of the docket sheet in that proceeding indicating that the judgment had been affirmed and the mandate had issued. (Id. 73-78). Based on these documents, the Immigration Judge ("IJ") found that petitioner had indeed been convicted of conspiracy to distribute cocaine and sentenced to 60 months in prison, and that the charge of removability had been sustained. (Id. 70). In addition, the IJ issued an oral decision finding that removability had been established, and that there was no relief available for petitioner, including relief under former section 212(c) of the INA because petitioner had been convicted of an aggravated felony. (Id. 4648). The application of former section 212(c) of the INA to petitioner's circumstances will be discussed infra. Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA") by notice of appeal filed April 17, 1998. (Id. 41-43). On May 4, 1999, the BIA issued a decision affirming the IJ's decision on the ground that the conviction report submitted in the case established, by clear and convincing evidence, that petitioner was removable as charged, and that section 212(c) relief was unavailable because petitioner was in removal proceedings. (Id. 2-3).
Petitioner appealed to this Court on June 23, 1999 under 28 U.S.C. § 2241. However, by letter dated November 24, 1999, Assistant United States Attorney James A. O'Brien III requested that the Court remove this case from active consideration pending resolution of certain appeals with respect to jurisdictional issues then pending before the Second Circuit in similar cases. Consequently, on January 5, 2000, I issued an order enjoining petitioner's deportation and placed the case on the suspense calendar. On June 25, 2001, the Supreme Court decidedCalcano-Martinez v. I.N.S. 533 U.S. 348 (2001), holding that the jurisdiction-stripping provision of the illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No., 110 Stat. 3009-546 et seq. (1996) ("IIRIRA") did not preclude aliens, who had been found removable based on their prior aggravated felony convictions, from filing habeas petitions in district court-thus confirming that this Court had jurisdiction to evaluate the merits of petitioner's habeas petition.
II. DISCUSSION 1. Petitioner's Objections
Petitioner objects to the RR on the grounds that the court failed to consider (1) any hardship to petitioner's wife, to whom he was married on July 29, 1989, or to his son, who suffers from sickle cell anemia; (2) the fact that petitioner is the sole financial source for his family; (3) the need to preserve family unity; (4) whether petitioner is eligible for a cancellation of removal under INA section 240A, as amended, 8 U.S.C.A. section 1229(b)(a); and (5) the fact that petitioner accepted criminal responsibility for his drug offense and was incarcerated for 52 months. Further, petitioner also requests that the Court reserve decision on his petition pending the INS's appeal of the decision of the United States District Court for the District of Connecticut in Jankowski-Burczyk v. INS, 138 F. Supp.2d 269 (D. Conn. 2001), which granted the section 2241 habeas of a petitioner seeking discretionary waiver of removal under INA section 212(h), as amended, 8 U.S.C. § 1182(h), due to her status as a lawful permanent resident alien convicted of an aggravated felony. (Pet.'s objections to RR, May 24, 2002). However, as the government points out in its letter brief dated June 7, 2002, on May 29, 2002 the Second Circuit reversed the lower court in Jankowski-Burczyk, finding that section 212(h), which allows non-lawful permanent resident aliens, but not permanent resident aliens, to waive their criminal convictions, does not violate equal protection. Jankowski-Burczyk, 2002 WL 1066630 (2d Cir. May 29, 2002). Petitioner's objections are without merit for the reasons detailed below.
2. Analysis (a) Petitioner is Ineligible for Section 212(c) Discretionary Relief
Although petitioner does not explicitly say so, his first three objections address factors that would properly be considered only in the forum of a former section 212(c) discretionary relief hearing. Specifically, prior to the enactment of the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1241 et seq. (1996) ("AEDPA section 440(d)") and IIRIRA section 304, section 212(c) of the INA, as amended, 8 U.S.C. § 1182(c) (1994), gave the Attorney General broad discretion to waive the deportation of certain resident aliens. Pursuant to section 212(c), deportation could be waived in instances where a convicted alien demonstrated that he or she had a lawful unrelinguished domicile in the United States for at least seven years and that he or she had not been convicted of one or more "aggravated felonies" for which he or she had served "a term of imprisonment of at least five years." 8 U.S.C. § 1182(c).
However, the enactment of AEDPA section 440(d) and IIRIRA section 304 in 1996 significantly constricted the relative latitude of this discretionary relief, both of which have amended section 212(c) to "bar relief for individuals who were deportable because they had committed certain categories of offenses," including an "aggravated felony," regardless of how much time was served in prison. Gonzalez v. INS, 2002 WL 31444952, at *1 (S.D.N.Y. Oct. 31, 2002) (citations omitted). Further, under IIRIRA, anyone previously convicted of an aggravated felony was prohibited from seeking what is termed under that Act a "cancellation of removal." Id. (citations omitted).
Despite Magistrate Judge Eaton's holding to the contrary, petitioner asserts that he is qualified for discretionary relief because of certain enumerated factors dealing largely with his familial situation, and therefore still appears to believe that the applicability of IIRIRA section 304 to him is impermissibly retroactive. However, I agree with the analysis of this issue as it appears in the RR. Specifically, as Magistrate Eaton observed, in INS v. St. Cyr the Supreme Court addressed the retroactivity issue under IIRIRA, holding that section 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." 533 U.S. 298, 291 (2001). In other words,St. Cyr limited the scope of section 212(c) relief to aliens "whose [pre-AEDPA/pre-IIRIRA] 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." Id. at 326.
I agree with the RR that " St. Cyr does not help Ortega" because "Ortega's conviction was not based on a guilty plea." (RR at 5). Despite petitioner's assertion in his petition that he "pleaded guilty" to the drug offenses for which he was convicted (Pet. at 1), it is beyond dispute that petitioner was convicted after a jury trial, in which he was found guilty of conspiracy to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 846 and of possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). (Certified Administrative Record, 74-75). Accordingly, because petitioner's conviction was not based on a guilty plea, he does not fall within the class of individuals that the St. Cyr Court determined may be afforded the opportunity to seek former section 212(c) discretionary relief. Indeed, this Court declines to address the question of whether IIRIRA section 304 functions as a bar to discretionary relief from removal with respect to individuals who were convicted following jury trials prior to the enactment of that statute-as is the case here.
While noted by Judge Lynch in DiSanto v. INS, 2002 WL 10448, at *4 (S.D.N.Y. Jan. 3, 2002), the Supreme Court did not address whether section 304 of IIRIRA was applicable to persons convicted after trial. Albeit in dicta, this Circuit did. That narrow issue was resolved in St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000). Unfortunately, the language there forecloses relief for petitioner. The problem I have is that while a defendant should not be prejudiced, to say nothing of misled, when he has been induced to plead guilty to insure favorable treatment by the INS, the converse seems equally viable, i.e., a defendant should not be prejudiced by exercising his right to trial by jury. Again, while I may share the views of Judge Rambo as set forth in Ponnapula v. Ashcroft, 2002 WL 31780200 (M.D. Pa. Dec. 10, 2002), this Circuit does not. The reasoning in Ponnapula is worth emphasizing here:
In IIRIRA, Congress legislated with respect to convictions — not trials or pleas. See, e.g., 8 U.S.C. § 1227(a)(2) (defining deportable offenses with reference to convictions). While it is true that the Supreme Court, in St. Cyr, only addressed those aliens who were convicted after guilty pleas, it did so not because that group of aliens is the only group still eligible for discretionary relief. Rather, that was the factual scenario presented to the Court in that case. Under Respondents' approach, a defendant who pleads guilty to a particular deportable offense would have the right to seek § 212(c) relief; however, a defendant who, after weighing the immigration consequences, opts to go to trial and is convicted of an identical charge, would face mandatory deportation. It is inconceivable that Congress intended such a result. 2002 WL 31780200, at *7.(b) Petitioner is Ineligible for Section 240A Cancellation of Removal
Petitioner maintains that the RR fails to include an "examination of my offense as a crime of moral turpitude, permitting cancellation of removal under Section 240A, as described after April 1, 1997, the same waiver known in the past as Section 212(c)." (Objections to RR at 1). While petitioner is correct that the RR does not address whether the offenses for which he was convicted constitute crimes of "moral turpitude," petitioner is nevertheless statutorily ineligible for cancellation of removal under the INA. Specifically, INA section 240A, as amended, 8 U.S.C.A. section 1229(b)(a), states that the Attorney General may cancel removal in the case of permanent residents deportable from the United States if the individual "(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony." Petitioner cannot satisfy the third prong. Section 101(a)(43)(B) of the INA, as amended, 8 U.S.C. § 1101(a)(43)(A), defines the term "aggravated felony" to include any "drug trafficking crime" as defined in 18 U.S.C. § 924(c), which in turn defines "drug trafficking crime" to include "any felony punishable" under the Controlled Substances Act. See 21 U.S.C. § 841(a)(1) (punishing as felony a conviction for knowingly or intentionally distributing or dispensing a controlled substance). Accordingly, petitioner's 1994 conviction for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) is an aggravated felony that renders him ineligible for cancellation of removal under section 240A.
(c) Petitioner's Acceptance of Responsibility and Incarceration for Less than Five Years
Petitioner lists one of the following grounds for granting his section 2241 petition: "I accepted criminal responsibility for my drug offense and I was incarcerated for 52 months . . . Under St. Cyr, the interpretation of my criminal activity and the time served shall be controlled by the clock. My definition clock shall stop when I committed the offense and for relief eligibility when I was found guilty of the drug possessory crime." (Pet.'s reply to government's response, May 18, 2002, at 2). Petitioner appears to argue that he is eligible for section 212(c) relief because he did not serve for more than five years. To qualify for former section 212(c) relief, an individual had to show, inter alia that he had not committed an aggravated felony for which he had served a term of imprisonment of at least five years. See INA section 212(c), as amended, 8 U.S.C. § 1182(c). While petitioner is correct that he served a term of imprisonment for less than five years — just 52 months — he nevertheless remains ineligible for section 212(c) discretionary relief for the reasons articulated supra at 2(a).
III. CONCLUSION
For the foregoing reasons, petitioner's section 2241 petition is denied, and his stay of deportation vacated.