Opinion
Case No. 98 C 7076.
June 3, 2003.
ORDER
Petitioner, Mangkhadeth Setharatsomphou, a criminal alien subject to a final order of deportation, has filed a petition for writ of habeas corpus and mandamus seeking his release pending his actual removal from the United States and further seeking an order compelling the INS to adjudicate his I-130 petition and his request for a waiver pursuant to Immigration and Nationality Act ("INA") § 212(h), 8 U.S.C.A. § 1182(h) (West 1999). In a prior memorandum opinion and order, this court granted in part and denied in part the government's motion to dismiss. Setharatsomphou v. Reno, No. 98 C 7076, 1999 U.S.Dist. LEXIS 14839 (N.D. Ill. Sept. 2, 1999). In its June 3, 2002 opinion, this court revisited its decision and, relying on INS v. St. Cyr, 533 U.S. 289 (2001), and Lara-Ruiz v. INS, 241 F.3d 934, 945 (7th Cir. 2001), ordered briefing to ascertain whether Setharatsomphou conceded deportability or pled guilty in reliance on the availability of a 212(h) waiver, thus potentially implicating Setharatsomphou's due process rights. Setharatsomphou has informed the court that his request for a writ of habeas corpus is now moot as he has already been released from custody.
The Attorney General has discretion to grant a 212(h) waiver to an alien who can show his denial of admission would result in "extreme hardship" to a family member who is either a citizen or a lawful resident. 8 U.S.C.A. § 1182(h).
The court can only assume that Setharatsomphou, despite his final order of deportation, is still in this country and has not yet been removed.
The facts of the case are described in greater detail in the court's previous opinions. Setharatsomphou, a native of Laos, entered this country as a refugee in 1986 and became a lawful permanent resident in November 1987. On June 3, 1992, he was convicted of aggravated assault. As a result, he lost his residency status sometime after the conviction and prior to August 1994, when his father submitted an I-130 form on Setharatsomphou's behalf seeking an immediate relative visa. At a deportation hearing on July 19, 1995, an Immigration Judge ("IJ") determined that Setharatsomphou was deportable under INA § 241(a)(2)(C), 8 U.S.C.S. § 1251(a)(2)(C) (Law. Co-op. 1995). On October 19, 1995, Setharatsomphou's father submitted an application for a waiver of deportation for his son under INA § 212(h). The Board of Immigration Appeals ("BIA") affirmed the J's decision and entered a final order of deportation on May 15, 1997. Of particular note, the BIA held that Setharatsomphou was ineligible for a § 212(h) waiver because his aggravated assault conviction met the definition of "aggravated felony" in 8 U.S.C.S. § 1101(a)(43) (LEXIS 1997). On August 5, 1997, the INS arrested Setharatsomphou pursuant to the final order of deportation.
At the time Setharatsomphou pled guilty to aggravated assault and was sentenced to three years imprisonment, his conviction did not qualify as an "aggravated felony" under the then-existing immigration laws. An aggravated felony was defined as a "crime of violence . . . for which the term of imprisonment imposed . . . is at least 5 years." 8 U.S.C.S. § 1101(a)(43)(F) (Law. Co-op. 1992). At that time, conviction of an aggravated felony did not preclude § 212(h) relief; only crimes involving murder or torture had that effect. Id. § 1182(h). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), effective September 30, 1996, reduced to one year the period of imprisonment required for a crime to qualify as an aggravated felony and provided that a lawful permanent resident convicted of an aggravated felony is ineligible for a § 212(h) waiver. 8 U.S.C.A. § 1101(a)(43)(F) (West 1999); id. § 1182(h). These changes expressly apply to pre-IIRIRA convictions and pending applications. See id. § 1101(a)(43) ("[T]he term applies regardless of whether the conviction was entered before, on, or after September 30, 1996."); id. § 1182 note (Effective and Termination Dates, 1996 Acts, Section 348(b)) ("The amendment . . . shall be effective on [September 30, 1996] and shall apply in the case of any alien who is in exclusion of deportation proceedings as of such date unless a final administrative order in such proceedings has been entered as of such date."). Because Setharatsomphou's application was pending at the time the IIRIRA took effect, the retroactive change in the law clearly applied to him.
In Lara-Ruiz, the Seventh Circuit suggested that someone in Setharatsomphou's position, who actually relied on the availability of a § 212(h) waiver at the time he pled guilty, might be able to mount a due process attack and overcome the retroactive effect of the amendment. 241 F.3d at 945. While Setharatsomphou has attempted to argue that he relied on the availability of § 212(h) at the time he pled guilty, he has failed to present this court with any evidence of such reliance. Setharatsomphou attaches an affidavit from his trial counsel, Frederick Steffen, in order to bolster his reliance argument. However, Mr. Steffen avers only that he told Setharatsomphou that he would not be deported if he pled guilty. His affidavit is silent on the subject of any discussion he might have had with Setharatsomphou about the availability of a § 212(h) waiver. Petitioner has not presented this court with any evidence of Setharatsomphou's reliance upon a § 212(h) waiver. Without this, the court cannot conclude that Setharatsomphou pled guilty in reliance on the availability of a 212(h) waiver.
The court also rejects petitioner's contention that the holding in Beharry v. Reno, 183 F. Supp.2d 584 (E.D.N.Y. 2002), rev'd sub nom on other grounds, Beharry v. Ashcroft, No. 02-2171, 2003 WL 1989608 (2d Cir. May 1, 2003), establishes that Setharatsomphou has a "clear right" (as required for mandamus relief) to discretionary relief under 212(h). In Beharry, the court held that the petitioner, who was the father of a six-year-old daughter who would suffer "extreme hardship" if petitioner was removed, was eligible for 212(h) relief even though he was convicted of a crime that was later designated as an "aggravated felony." Id. at 588. In reaching that result, the Beharry court relied on the International Covenant on Civil and Political Rights (a non-ratified treaty), the Universal Declaration of Human Rights (a nonbinding resolution of the General Assembly of the United Nations), and the Convention on the Rights of the Child (that has never been adopted by the United States) as "aids in statutory construction." Id. Because the court finds that Congress has unambiguously expressed its intent to apply the new definition of aggravated felony and the new restrictions on Section 212(h) retrospectively, the use of such construction aids are inappropriate. Hughes v. Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (inappropriate for a court to look beyond the language of the statute if the language is clear).
In light of this, the court affirms its September 2, 1999 opinion in which it rejected Setharatsomphou's request to compel the INS to adjudicate his application for a waiver of inadmissibility under § 212(h). Because the INS has already acted on this request, and Setharatsomphou has put forward no evidence that he relied on the availability of 212(h) at the time he pled guilty, Setharatsomphou is not entitled to mandamus relief. For all the reasons explained in today's order, as well as those explained in the court's September 2, 1999 and June 3, 2002 orders, the government's motion to dismiss Setharatsomphou's petition for a writ of habeas corpus and mandamus is granted.
In addition, the court affirms its earlier holding rejecting Setharatsomphou's eleventh-hour due process argument regarding the government's delay in ruling on his 212(h) waiver. Setharatsomphou raised the argument for the first time in one paragraph in his response brief and asserted in his original petition that the government never ruled on his 212(h) request, when in fact it had. Despite given an opportunity to do so, he has apparently chosen not to pursue this line of attack.