Opinion
99-CV-4652 (JG), 99-CV-6193 (JG), 99-CV-7054 (JG), 99-CV-7114 (JG), 99-CV-7630 (JG).
May 11, 2000.
ALAN MICHAEL STRAUSS, New York, NY, Attorney for Petitioners Pena-Rosario and Vargas.
NEIL ROBINSON, Oakdale, LA, Petitioner Pro Se.
SERGIO TRINIDAD, Oakdale, LA, Petitioner Pro Se.
BAJRUSH GJETA, Oakdale, LA, Petitioner Pro Se.
LORETTA LYNCH, United States Attorney, Eastern District of New York, Brooklyn, New York, By: Scott Dunn, Mary Elizabeth Delli-Pizzi, Assistant United States Attorneys Patrick Shen Special Assistant United States Attorneys for Respondents.
MEMORANDUM AND ORDER
The respondents (collectively referred to hereinafter as "the Government") have moved for reconsideration of my memorandum and order of February 8, 2000, which granted writs of habeas corpus to five aliens seeking to apply for discretionary waiver of deportation. For the reasons discussed below, the motion is denied.
BACKGROUND
The facts of these petitioners' cases and my reasons for granting them habeas relief are fully explained in my previous memorandum and order,see Pena-Rosario v. Reno, 83 F. Supp.2d 349 (E.D.N.Y. 2000), familiarity with which is assumed.
DISCUSSION
The Government's motion is made under Federal Rule of Civil Procedure 59(e), which authorizes motions "to alter or amend a judgment," and Eastern District of New York Local Civil Rule 6.3, which authorizes motions for reconsideration when accompanied by "a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked."
The requirements of Local Rule 6.3, which applies in both the Southern and Eastern Districts, are strictly construed in order to keep the court's docket free of unnecessary relitigation. See Bell Sports, Inc. v. System Software Assocs., Inc., 71 F. Supp.2d 121, 125-26 (E.D.N Y 1999) (noting that a party seeking reconsideration bears a "difficult burden . . . `in order to dissuade repetitive arguments'" (quoting Ruiz v. Commissioner of the Dep't of Transp., 687 F. Supp. 888, 890 (S.D.N Y 1988))); see also Quartararo v. Catterson, 73 F. Supp.2d 270, 273 (E.D.N.Y. 1999) (noting Rule 6.3's "design to prevent re-litigation"). A party may not advance a new argument in a motion to reconsider; that arguments is waived. See Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d Cir. 2000) ("To be entitled to reargument, a party "must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion." (quoting Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999) (emphasis added));cf. Brown v. J.F.H. Mak Trucking, 95-CV-2118, 1999 WL 1057274, at *1 (E.D.N.Y. Nov. 8, 1999) ("[S]uch motions cannot be used as a vehicle to introduce new evidence that should have been set forth during the pendency of the prior motion or could have been discovered in the exercise of due diligence."). Nor may the party merely reiterate or repackage an argument previously rejected by the court; that argument is for appeal. See Brown, 1999 WL 1057274, at * 1 (noting that a motion to reconsider "may not be used as a substitute for an appeal"); see also Resource N.E. of Long Island v. Town of Babylon, 80 F. Supp.2d 52, 64 (E.D.N.Y. 2000) ("[A motion to reconsider] is not a vehicle to reargue those issues already considered when a party does not like the way the original motion was resolved."). The purpose of the motion to reconsider is to allow the district court to correct its own mistake, by calling its attention to a factual matter or a controlling precedent previously put forward by the party but "overlooked" by the court. Bell Sports, 71 F. Supp.2d at 126.
The Government's motion falls far short of meeting this standard.
A. Jurisdiction Under 28 U.S.C. § 2241
The Government first argues that Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), cert. denied, 526 U.S. 1004 (1999), and Jean-Baptiste v. Reno, 144 F.3d 212 (2d Cir. 1998), two cases on which the memorandum and order relied in finding subject matter jurisdiction, are inapposite because they were decided under the transitional (as opposed to the permanent) provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). In support of its contention, the Government cites Richardson v. Reno, 180 F.3d 1311 (11th Cir. 1999),cert. denied, 120 S.Ct. 1529 (2000), and (in a subsequent letter),Max-George v. Reno, 205 F.3d 194 (5th Cir. 2000) (following Richardson).
I rejected this argument in the memorandum and order see Pena-Rosario, 83 F. Supp.2d at 360-62; it therefore provides no basis for a motion to reconsider. I did not have the benefit of Max-George, which was decided after the memorandum and order, but this Fifth Circuit opinion is not "controlling" in this district and therefore cannot be the basis for a motion to reconsider. Even had I seen Max-George previously, I would have rejected it for the same reason I rejected Richardson. It is worth pointing out that since the memorandum and order was issued, the Third and Ninth Circuits have found that habeas jurisdiction did survive IIRIRA's permanent provisions and rejected Richardson and Max-George.See Liang v. INS, 206 F.3d 308, 317 (3d Cir. 2000) ("There is no reason why the jurisdictional ruling in this case under the permanent rules should be any different than that we reached under the transitional rules."); id. at 320 ("The holdings of both Richardson cases andMax-George that Congress need not mention habeas or § 2241 to repeal the district courts' habeas jurisdiction are at odds . . . with the reasoning of . . . courts of appeals that have read the Supreme Court's precedent in Yerger and Felker to require explicit statutory reference to habeas or § 2241 to effect congressional repeal of habeas jurisdiction."); Flores-Miramontes v. INS, ___ F.3d ___, ___, No. 98-70924, 2000 WL 558024, at *8 (9th Cir. May 9, 2000) ("[W]e find the Third Circuit's decision both more persuasive than the Fifth's or the Eleventh's and easier to reconcile with existing Ninth Circuit law.").Liang and Flores-Miramontes, as opposed to Richardson and Max-George, are consistent with the principles established by the Second Circuit inHenderson and Jean-Baptiste.
The Government next argues that Jean-Baptiste was wrongly decided by the Second Circuit because it "[w]holly ignored" certain habeas cases brought in the immigration context. It should go without saying that I do not have the authority to overrule Jean-Baptiste, on a motion to reconsider or otherwise. By appealing, the Government may take its quarrel with Jean-Baptiste to the court that decided it.
The Government next argues that habeas jurisdiction in the district court is unnecessary because "until the Court of Appeals rules otherwise, direct review of petitioners' orders of removal remains available in Circuit Court." (Respondents' Memorandum of Law at 19.) Not only is this a new argument, it directly contradicts the position taken by the Government's counsel at oral argument on these petitions. There, counsel said that the court of appeals would not have jurisdiction over these petitioners' statutory claims. (Transcript of Proceedings,Pena-Rosario v. Reno, February 4, 2000, at 14.) The Government's apparent change of heart does not provide grounds for a motion to reconsider. Cf.Liang, 206 F.3d at 322 n. 8 (noting the Government's "vacillation" on this same issue in litigation before the Third Circuit and concluding that it was better to rest decision on statutory construction and Felker than Government attorneys' mercurial positions).
The Government next disputes the memorandum and order's conclusion that Pena-Rosario was effectively placed in deportation proceedings when he was served with an order to show cause, therefore placing him under the IIRIRA transitional rules for jurisdictional purposes and Henderson for purposes of determining the availability of § 212(c) relief. Although the Government has greatly expanded on an argument it previously gave only a footnote, it offers no "controlling" authority "overlooked" by the court.
B. The Availability of § 212(c) Relief
Citing 8 U.S.C. § 1182 (c) (1994), the Government contends that petitioners Robinson, Trinidad, and Gjeta are not eligible for § 212(c) relief, even assuming that the statutory provision had not been repealed, because they had not been in the country for seven years when they committed their offenses. The Government cites no authority for this proposition, and it appears instead that under applicable regulations the seven years must be accrued (at the latest) before an order of deportation becomes final. See Vargas v. INS, 938 F.2d 358, 360-61 (2d Cir. 1991); Hernandez-Rodriguez v. Pasquarell, 118 F.3d 1034, 1040 n. 7 (5th Cir. 1997). By that standard, all the petitioners here would be eligible for § 212(c) relief.
Nonetheless, I need not reach this question. This is a new argument, advanced by the Government for the first time on its motion to reconsider. It is therefore waived. In the memorandum and order, I explicitly stated that I had no occasion to decide "whether any pre-AEDPA statutory bar might preclude these petitioners from the relief they seek." Pena-Rosario, 83 F. Supp.2d at 366 n. 12. The Government may address this argument to the immigration judge on remand.
The Government argues that my conclusion that IIRIRA provides no evidence of clear Congressional intent on the question of retrospective application overlooks the plain language of IIRIRA, which repealed entirely § 212(c). See IIRIRA § 304(a). Even the Government does not contend, however, that the repeal of § 212(c) took place immediately upon enactment of IIRIRA on September 30, 1996. Instead, its position is that the repeal was effective on April 1, 1997; its support for that position comes from the IIRIRA effective date. See § 309(a). However, the clear command from the Supreme Court is that a "statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date." Landgraf v. USI Film Prods., 511 U.S. 244, 257 (1994), quoted in Pena-Rosario, 83 F. Supp.2d at 364.
In its motion papers, the Government cites to Buitrago-Cuesta v. INS, 7 F.3d 291 (2d Cir. 1993). I did not overlook this case; instead, I discussed it at some length. See Pena-Rosario, 83 F. Supp.2d at 364. Accordingly, that case provides no basis for a motion to reconsider.
The Government next invokes Fassilis v. Esperdy, 301 F.2d 429 (2d Cir. 1962). This case is nearly 40 years old, and it has not been cited by the Second Circuit since 1966. In Fassilis, the court held that a statutory change making alien crewman — as opposed to other aliens — ineligible for adjustment of status applied to alien crewmen whose applications were pending on the date of enactment. See Fassilis, 301 F.2d at 431. In so holding, the court relied entirely on Ziffrin, Inc. v. United States, 318 U.S. 73 (1943), one of a long line of cases in which the Supreme Court invoked the nostrum that courts are to apply the law in effect at the time they render a decision. See Fassilis, 301 F.2d at 431-32 (quoting Ziffrin, 318 U.S. at 78); see also Bradley v. School Bd. of Richmond, 416 U.S. 696, 711 (1974); Thorpe v. Housing Auth. of Richmond, 393 U.S. 268 (1969). Other Supreme Court cases, however, included a competing principle, namely that retroactivity is disfavored and that federal statutes will therefore construed to apply prospectively only unless they explicitly indicate otherwise. See, e.g., Bowen v. Georgetwon Univ. Hosp., 488 U.S. 204, 208 (1988).
In Landgraf v. USI Film Prods., 511 U.S. 244 (1994), the Supreme Court undertook to reconcile these two "seemingly contradictory" lines of cases and in so doing to propound a rule to be followed when questions of retrospective application arise. See id. at 264-65; see also id. at 277 (limiting the holding of Bradley). It is therefore Landgraf, notFassilis or the line of cases on which it relied, that provides the controlling authority on the question of retroactivity raised by this case. The memorandum and order included extensive discussion and application of Landgraf, see Pena-Rosario, 83 F. Supp.2d at 363-66; there is therefore no basis for a motion to reconsider on this ground.
The Government cites to several circuit court opinions — which it did not cite in its previous brief — that support its argument that repeal of § 212(c) relief results in no retroactive effect. These decisions are not "controlling" authority for a court in the Second Circuit, and they therefore provide no basis for a motion to reconsider.
C. Trinidad's Request for Bail
Trinidad seeks immediate release on bail. The Government challenges the authority of this court to provide that relief. I need not reach that question, however, because Trinidad has not exhausted his administrative remedies in seeking release. His request is therefore denied. See Kwame v. INS, 98 Civ. 1786, 1999 WL 253615, at *3 (S.D.N.Y. Apr. 28, 1999);Ahmed v. McElroy, 97 Civ. 1121, 1998 WL 283283, at *1 (S.D.N.Y. June 1, 1998) ("[I]f the petitioner's efforts to exhaust his administrative remedies are successful and he is released by the District Director or the BIA, his constitutional challenges will be rendered moot."); Salazar v. Reich, 940 F. Supp. 96, 98 (S.D.N.Y. 1996) (holding that challenge to detention determination was premature where an administrative appeal remained pending); United States ex rel. Chung v. Thornburgh, 749 F. Supp. 93, 96-97 (S.D.N.Y. 1990) (dismissing challenge to detention due to alien's failure to exhaust administrative remedies).
Gjeta has also sought immediate release on bail. The Government is directed to respond to this application on or before May 22, 2000. Gjeta's reply, if any, must be filed on or before June 5, 2000.
CONCLUSION
For the reasons stated herein, the Government's motion to reconsider is denied. Its motion in the alternative that I vacate the memorandum and order and hold these petitions in abeyance pending the Second Circuit's resolution of these questions is denied. Trinidad's application for immediate release on bail is denied. The requests by Robinson, Trinidad, and Gjeta for an extension of time and appointment of counsel are denied as moot.So Ordered.