Opinion
CIVIL ACTION NO. 03-5622
February 5, 2004
MEMORANDUM AND ORDER
Before the Court are Petitioner Salvatore Salamone's Petition for a Writ of Habeas Corpus and Stay of Removal (Docket No. 1), the Government's response thereto (Docket Nos. 6 7), and the Petitioner's reply to the Government's response (Docket No. 8).
I. FACTUAL AND PROCEDURAL HISTORY
Salvatore Salamone is an alien seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (c)(3). A final order of removal has been entered against him and he is to be deported to his native Italy, where he remains an Italian citizen.
Petitioner was lawfully admitted to the United States as a legal permanent resident on November 22, 1963. On April 15, 1985, he was convicted in the United States District Court for the Middle District of Pennsylvania for possession of an unregistered firearm and falsification of firearms transaction records. He was also convicted on June 24, 1987, in the United States District Court for the Southern District of New York for the offenses of false statements and conspiracy to violate currency laws. Petitioner served approximately nine years in prison for these convictions.
The 1985 criminal convictions were for violations of 26 U.S.C. § 5861(d) and 18 U.S.C. § 924 (a), respectively.
The 1987 criminal convictions sere for violations of U.S.C. § 1001 and 18 U.S.C. § 371, respectively.
The Immigration and Naturalization Service ("INS") began deportation proceedings on August 8, 1994, charging Petitioner with deportability based on the convictions. Specifically, Petitioner was charged under section 241(a)(2)(C) of the Immigration and Nationality Act ("INA") for his 1985 firearms convictions and was charged with two crimes involving moral turpitude ("CIMT") under INA § 241(a)(2)(A) (ii) for his 1987 convictions for false statements and violation of currency laws. On August 10, 1994, an immigration judge ("IJ") ruled that Petitioner was deportable under section 241(a)(2)(C) for having been convicted of a firearms offense. The IJ dismissed the charge under section 241(a)(2)(A) (ii) determining that Petitioner had been convicted of only one crime involving moral turpitude, rather than two CIMT convictions as required by that section of the INA. See Interlocutory Decision on the Issue of Respondent's Deportability, Docket No. 2, Ex. A.
INA § 241(a)(2)(C) states:
Certain firearm offenses. Any alien who at any time after entry is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is deportable.
INA § 241(a)(2)(C), codified at 8 U.S.C. § 1251(a)(2) (C) (1995), transferred in 1996 to 8 U.S.C. § 1227.
INA § 241(a)(2)(A)(ii) states:
Multiple criminal convictions. Any alien who at any time after entry is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.
INA § 241(a)(2)(A) (ii), codified at 8 U.S.C. § 1251 (a) (2)(A) (ii), transferred in 1996 to 8 U.S.C. § 1227.
The Petitioner applied for relief from deportation under INA §§ 212(h) and 212(c). At the time, a deportable alien could be granted a so-called hardship waiver of his grounds for deportability under section 212(h) if an IJ found that certain qualifying family members would suffer "extreme hardship" if the alien were actually deported. On October 15, 1996, an IJ held a hearing and granted Petitioner's request for a hardship waiver. See Oral Decision of the IJ, Docket No. 6, Ex. C. At the hearing, Petitioner and his family, including his wife and four children, all United States citizens, testified to the hardship the family would suffer if Petitioner were deported. The IJ granted Petitioner a hardship waiver concluding that, based on what must have been moving oral testimony, Petitioner had met his burden under section 212(h). Accordingly, the IJ waived the section 241(a)(2)(C) conviction for Petitioner's firearms crime and adjusted his status back to legal permanent resident. The Government appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). Petitioner's request for relief under section 212(c) was not discussed because it was moot.
On March 23, 1998, the BIA overturned the IJ's decision and found Petitioner was not eligible for relief under section 212(h). The BIA ruled that, according to reforms made to the INA after the IJ's October 15, 1996 decision, Petitioner was no longer eligible for the waiver because his firearms conviction qualified as an aggravated felony.
In the present Petition, Petitioner seeks to have his section 212(h) waiver reinstated or, in the alternative, seeks remand to the BIA for consideration of relief pursuant to section 212(c). The Government contends that Petitioner is not entitled to relief under either provision and that the Petition must be dismissed. Both claims are considered below, along with the necessary legal background.
II. THE HABEAS PETITION
A. Section 212(h) 1. Statutory Background
INA § 212(h) formerly gave the Attorney General the discretion to waive an alien's inadmissibility if an alien was a spouse, parent, or child of a United States citizen or permanent resident alien. See, e.g., Dipeppe v. Quarantillo, 337 F.3d 326, 327 (3d Cir. 2003); INA § 212(h)(1)(B), codified at 8 U.S.C. § 1182 (h) (1995). If the alien seeking the waiver met those qualifications, a waiver would be granted if he could demonstrate that denial of admission would cause extreme hardship to the citizen or permanent resident alien.Dipeppe, 337 F.3d at 327. Section 212(h) was revised in 1996 by the Illegal Immigrant Reform and Immigrant Responsibility Act ("IIRIRA"). Under the revisions, a legal permanent resident alien ("LPR") who is convicted of an aggravated felony or who has not resided in the United States for seven continuous years, is no longer eligible for a section 212(h) waiver. Dipeppe, 337 F.3d at 327; 8 U.S.C. § 1182 (h) (1996). 2. Petitioner's Arguments
Before passage of the IIRIRA, INA § 212(h) provided in pertinent part the following:
The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i) (II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if —
(1)(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's exclusion would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.8 U.S.C. § 1182(h) (1995). The following language was added to INA § 212(h) by the IIRIRA in 1996:
No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent resident if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceeding the date of initiation of proceedings to remove the alien form the United States.8 U.S.C. § 1182(h) (1996), flush language, second sentence; IIRIRA § 348(a), Pub.L. No. 104-208, 110 Stat. 3009 (effective April 1, 1997).
The term "aggravated felony" is defined for purposes of immigration law at INA § 101(a)(43), codified at 8 U.S.C. § 1101(a)(43). The definition has been expanded numerous times since its introduction into the immigration law lexicon in 1988. See Scheidemann v. INS, 83 F.3d 1517, 1519-20 (3d Cir. 1996).
Petitioner argues that he is entitled to have his section 212(h) waiver reinstated because the BIA erroneously overturned the IJ's October 15, 1996 decision. Specifically, Petitioner contends that the retroactive application of the IIRIRA's provisions that limited the availability of section 212(h) relief violates his due process rights.
As explained above, under the law as it existed before the IIRIRA, Petitioner was eligible for a hardship waiver under INA § 212(h). Indeed, on October 15, 1996, an immigration judge granted Petitioner a waiver. However, on April 1, 1997, the IIRIRA took effect and limited the availability of hardship waivers to aliens who had not been convicted of an aggravated felony. Thus, when the Government appealed the immigration judge's decision, the BIA determined on March 23, 1998 that Petitioner was no longer eligible for the waiver and vacated the IJ's previous ruling.
The United States Supreme Court has expressed that there exists a presumption against retroactive legislation. See INS v. St. Cyr, 533 U.S. 289, 315 (2001); Landgraf v. USI Film Products, 511 U.S. 244, 266 (1994). "Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly." St. Cyr, 53 U.S. at 316 (quoting Landqraf, 511 U.S. at 265-66) (internal citations omitted). Despite the presumption, "it is beyond dispute that, within constitutional limits, Congress has the power to enact laws with retrospective effect." Id. Thus, a statute may be applied retroactively if there is "a clear indication from Congress that it intended such a result." Id. Finding such unambiguous direction is demanding and is often limited to statutory language "that was so clear that it could sustain only one interpretation." Id. at 317 (quoting Lindh v. Murphy, 521 U.S. 320, 328 n. 4 (1997)).
Here, Congress was quite clear that this provision of the IIRIRA was to be applied retroactively. Section 348 of the IIRIRA states:
(b) Effective Date. — The amendment made by subsection (a) shall be effective on the date of the enactment of this Act and shall apply in the case of any alien who is in exclusion or deportation proceedings as of such date unless a final administrative order in such proceedings has been entered as of such date.
IIRIRA § 348(b) (emphasis added); 142 Cong. Rec. H11787, H11811 (daily ed. Sept. 28, 1996). The Supreme Court in St. Cyr cited this very language as clear congressional intent to retroactively limit the availability of hardship waivers. See St. Cyr, 533 U.S. at 319 n. 43. At the time the IIRIRA became effective, Petitioner was in deportation proceedings awaiting a decision from the BIA on the Government's appeal. Petitioner is, therefore, not eligible for a waiver of his grounds of deportability under INA § 212(h).
B. Section 212(c) 1. Statutory Background
INA § 212(c) is another provision through which a deportable alien could seek relief from deportation. INA § 212(c), codified at 8 U.S.C. § 1182(c) (repealed, 1996). The original version of section 212(c), passed in 1952, granted the Attorney General broad discretion to waive deportation. Hartman v. INS, 255 F. Supp.2d 510, 514 (E.D. Pa. 2003); see also St. Cyr, 533 U.S. at 296, 323 (describing the frequency with which section 212(c) relief was granted before passage of the IIRIRA). The Attorney General could grant a discretionary waiver of an alien's deportability if the alien was a lawful permanent resident with a lawful, unrelinquished domicile of seven consecutive years. St. Cyr, 533 U.S. at 314-15. Revisions to the INA since 1952 have restricted eligibility for section 212(c) waivers. Congress passed the Immigration Act of 1990 and declared ineligible any alien convicted of an aggravated felony who had served more than five years in prison at the time his application for relief was decided. See St. Cyr, 533 U.S. at 297;Hartman, 255 F. Supp.2d at 514; Immigration Act of 1990 § 511(a), Pub.L. No. 101-649, 104 Stat. 4978 (1990). In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act ("AEDPA"), rendering ineligible any alien convicted of an aggravated felony or drug offense, regardless of prison time served. See St. Cyr, 533 U.S. at 297; Sandoval v. Reno, 166 F.3d 225, 228 (3d Cir. 1999); Hartman, 255 F. Supp.2d at 514; AEDPA § 440(d), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Finally, Congress passed the IIRIRA and, effective April 1, 1997, repealed section 212(c) altogether. IIRIRA § 304(b).
Section 212(c) was replaced with two new forms of "cancellation of removal," one form for LPRs and another for non-LPRs. See 8 U.S.C. § 1229b(a) (b) (2003); IIRIRA § 240A(a) (b). Aliens convicted of any aggravated felony are now ineligible for relief.St. Cyr, 533 U.S. at 297.
The Government's initial position regarding the repeal was that it applied retroactively to all aliens in deportation proceedings at the time the repeal became effective. See St. Cyr, 533 U.S. at 317. However, although it has been repealed and despite the Government's position, section 212(c) has continuing viability. In INS v. St. Cyr, the United States Supreme Court held that section 212(c) remains available for aliens whose criminal convictions were obtained through guilty plea agreements and who, notwithstanding the convictions, would have been eligible for section 212(c) relief at the time of their plea under the law then in effect. St. Cyr, 533 U.S. at 326. In so doing, the Supreme Court decided that retroactive application of IIRIRA § 304 is unconstitutional as applied to aliens who pleaded guilty to their criminal convictions and who were in deportation proceedings before the effective date of the IIRIRA. The Court explained the general presumption against retroactive laws and stated: "Given the frequency with which section 212(c) relief was granted in the years leading up to AEDPA and IIRIRA, preserving the possibility of such relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial." St. Cyr, 533 U.S. at 323. Thus, too many aliens had relied on the then-state of the law when pleading guilty to allow the IIRIRA to have retroactive effect. Id. 2. Petitioner's Arguments
Petitioner did not plead guilty to his aggravated felony conviction. Rather, he proceeded to trial and was found guilty by a jury. Nonetheless, Petitioner argues that the distinction between a guilty plea and a conviction at trial is irrelevant. Petitioner explains that he relied on the then-state of the law when deciding to go to trial no less than the alien who decided to plead guilty. Therefore, he argues that retrospective application of the IIRIRA to prevent him from applying for relief from deportation under section 212(c) is a violation of his due process rights.
Although this narrow issue is undecided in this Circuit, a number of courts have addressed the distinction between a guilty plea and a conviction at trial in reference to IIRIRA § 304(b) and INA § 212(c). In Rankine v. Reno, 319 F.3d 93 (2d Cir. 2003), the Court of Appeals for the Second Circuit stated that aliens who chose to proceed to trial did not demonstrate the same reliance on section 212(c) as did aliens who entered guilty pleas. Rankine, 319 F.3d at 99-100. Accordingly, the Second Circuit limits St. Cyr to its facts, allowing IIRIRA § 304(b) to be applied retroactively to aliens convicted of aggravated felonies at trial, but not to those aliens who entered guilty pleas sacrificing their constitutional right to a trial.Id.; see also Ortega v. Reno, 99-CV-4512, 2003 U.S. Dist. LEXIS 617, *8-13 (S.D.N.Y. Feb. 13, 2003) (denying alien section 212(c) relief according to Second Circuit precedent, although lamenting the unfair result). The Courts of Appeals for the Seventh and Eleventh Circuits, as well as the District Court for the Eastern District of Virginia, have made similar holdings. See Brooks v. Ashcroft, 283 F.3d 1268, 1273 (11th Cir. 2002) (retroactive application of IIRIRA does not violate alien's Sixth Amendment rights because he received full trial); Montenegro v. Ashcroft, 03-CV-1850, 2004 U.S. App. LEXIS 916, *4 (7th Cir. Jan 22, 2004) ("[T]his exception does not apply to aliens like Montenegro who chose to go to trial; such aliens did not abandon any rights or admit guilt in reliance on continued eligibility for § 212(c) relief."); Janvier v. INS, 174 F. Supp.2d 430, 434-35 (E.D. Va. 2001) (limiting St. Cyr because "it plainly applies only to claimants able to show that they acted in reliance on the availability of § 212(c) discretionary relief," and aliens who went to trial did not show such reliance). Thus, a consideration of the law outside this Circuit weighs heavily against Petitioner's arguments.
In the Third Circuit, there are no precedential decisions binding this Court. However, two non-precedential opinions from Third Circuit judges provide guidance. In Carey v. Ashcroft, the Court concluded that an alien's decision to proceed to trial fatally distinguished him from the circumstances in St. Cyr that were unconstitutional. Carey, 45 Fed. Appx. 121, 122-23, 01-CV-3182, 2002 U.S. App. LEXIS 24689, *3-5 (3d Cir. May 14, 2002) (unpublished opinion). Accordingly, the Court allowed retroactive application of section 304 of the IIRIRA. And in Chukwuezi v. Ashcroft, although under different procedural circumstances than those presented here, the Court highlighted the importance in St. Cyr of an alien showing that he actually relied upon statutory relief that was subsequently repealed. Chukwuezi, 48 Fed. Appx. 846, 851-52, Ol-CV-2575, 2002 U.S. App. LEXIS 23391, *13-14 (3d Cir. Oct. 4, 2002) (unpublished opinion). Thus, the available guidance from the Third Circuit weighs against Petitioner's position, as well.
Unpublished opinions lack precedential authority under L.A.R. 28.3(a) and I.O.P. 5.3 (3d Cir. 2003), yet still provide persuasive guidance. See Cit of Newark v. Dep't of Labor, 2 F.3d 31, 33 n. 3 (3d Cir. 1993).
The Court has found only one case that supports Petitioner's argument. Judge Rambo of the Middle District of Pennsylvania wrote: "A defendant, who goes to trial believing that his opportunity to seek § 212(c) relief is secure, is as equally disrupted in his reasonable and settled expectations as is a defendant who accpets a plea believing it to confer such a benefit." Ponnapula v. Ashcroft, 235 F. Supp.2d 397, 404 (M.D. Pa. 2002).
Given what appears to be a growing trend in the law outside this Circuit, and the available case law within this Circuit, the Court rules that Petitioner's argument fails. He was convicted at trial in 1985 for possession of an unregistered firearm, an aggravated felony. He is thus ineligible for section 212(c) discretionary relief under the IIRIRA, as applied retroactively. The fact that Petitioner proceeded to trial in 1985 indicates that he did not rely on the then-existing state of the law to waive any constitutional rights. Moreover, even if that fact were not dispositive, Petitioner presents no evidence of how he actually relied on the law as it existed in 1985 when he made the decision to go to trial. Section 212(c) relief is unavailable to Petitioner. The Petition for a Writ of Habeas Corpus is denied.
An appropriate order follows.