Opinion
02 Civ. 9623 (HB)
October 22, 2003
OPINION ORDER
Petitioner, Augusto Castillo Acevedo (hereinafter "Acevedo" or "petitioner"), brings a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner seeks review of a final order of the Immigration and Naturalization Service (hereinafter "INS"), ordering his removal from the United States to his native country, Mexico. Petitioner argues that his conviction should be reversed because he was not advised of the immigration consequences of entering a guilty plea. Petitioner further argues that he is entitled to a discretionary waiver of removal pursuant to § 212(h) of the Immigration and Nationality Act (hereinafter "INA"), 8 U.S.C. § 1182 (h). For the following reasons, petitioner's request for a writ of habeas corpus should be denied.
The writ of habeas corpus shall not extend to a prisoner unless —
(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
(5) It is necessary to bring him into court to testify or for trial.
Effective March 1, 2003, the INS was abolished, and its functions relating to the effectuation of final orders of removal were transferred from the United States Department of Justice, under the Attorney General, to the Bureau of Immigration and Customs Enforcement (hereinafter "BICE") in the United States Department of Homeland Security.
I. BACKGROUND
A. Substantive History
Petitioner, a native citizen of Mexico, entered the United States on an unknown date. On July 12, 1990, the INS adjusted Petitioner's immigration status to that of a lawful permanent resident. On August 18, 1999, Petitioner plead guilty and was convicted in New York State Supreme Court, Sullivan County, of first degree manslaughter, a class B felony. See N.Y. Penal L. § 125.20.1 (person is guilty of manslaughter when "[w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person"). Petitioner is currently serving a state sentence of twelve years imprisonment for this conviction. It is undisputed that Petitioner's earliest possible date of release is April 30, 2009.
B. Procedural History
On August 20, 2001, petitioner was served with Notice to Appear in removal proceedings. The INS charged that as a consequence of his conviction, pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1127(a)(2)(A)(iii), Acevedo was removable from the United States as an alien convicted of an "aggravated felony." On December 12, 2001, Petitioner appeared in the Immigration Court with an accredited immigration representative, Rev. Robert Vitaglione; however, his hearing was adjourned to allow time for Acevedo to prepare a motion to terminate removal proceedings on the ground that he had been inadequately advised of the immigration consequences of his guilty plea in his state court proceeding.
On January 11, 2002, counsel for Acevedo submitted a motion to overturn the conviction and on April 2, 2002, the removal proceedings resumed. The Immigration Judge (hereinafter "IJ") refused to find Acevedo's conviction invalid based on this claim alone. The IJ noted that New York law does not require counsel to advise an alien defendant of the immigration consequences of a guilty plea. The IJ further noted that Acevedo's voluntary manslaughter conviction was for a "crime of violence," as defined by federal criminal law, and thus qualified as an aggravated felony. See INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) ("aggravated felony" definition includes "crimes of violence," as defined in 18 U.S.C. § 16). Accordingly, the IJ entered a final order for the removal of Acevedo to Mexico upon the completion of his sentence at the Downstate Correctional Facility.
On April 11, 2002 Acevedo filed an appeal with the Board of Immigration Appeals (hereinafter "BIA"), maintaining that his counsel's failure to advise him of the consequences of his guilty plea required a reversal of his conviction. On September 6, 2002, the BIA issued a per curium opinion upholding the decision of the IJ.
Acevedo now petitions this Court for a writ of habeas corpus, arguing that his: conviction should be overturned because of his criminal counsel's failure to advise him of the immigration consequences of his guilty plea, in violation of his Sixth Amendment right to assistance of counsel. Petitioner also asserts, for the first time, that he is eligible for a family hardship waiver of removal, pursuant to § 212(h) of the INA, providing for discretionary waiver of deportation for aliens whose removal would cause undue hardship to remaining family members.
II. DISCUSSION
A. Ripeness for Review
Petitions for writs of habeas corpus challenging final orders of removal of aliens currently serving protracted state sentences raise questions of prudential ripeness because the petitioners are not yet facing the looming "injustice." Accordingly, the Government argues that petitioner's habeas corpus petition is not yet ripe for review and the petition will not be "ripe" before sometime in 2009, and therefore his rights have not yet been violated. Despite the fact that petitioner has not yet finished serving his sentence, and therefore is not immediately facing removal, I find that his petition is ripe for review.
In determining whether a particular issue is ripe for judicial review, a court must consider (1) whether a claim for relief is constitutionally ripe, and (2) whether a claim for relief is prudentially ripe. Constitutional ripeness is "a doctrine that, like standing, is a limitation on the power of the judiciary. It prevents courts from declaring the meaning of the law in a vacuum and from constructing generalized legal rules unless the resolution of an actual dispute requires it." Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 2003). "To the extent that issues of ripeness involve, at least in part, the existence of a live `Case or Controversy,' [a] conclusion that [the complaining party] will sustain immediate injury . . . and that such injury would be redressed by the relief requested would appear to satisfy this [constitutional] requirement." Duke Power Co. v. Carolina Envtl Study Group, 438 U.S. 59, 81 (1978). Prudential ripeness "means that the case will be better decided later and that the parties will not have constitutional rights undermined by the delay. It does not mean that the case is not a real or concrete dispute affecting cognizable current concerns of the parties within the meaning of Article III. Of course, in deciding whether `better' means later, the court must consider the likelihood that some of the parties will be made worse off on account of the delay." Simmonds, 326 F.3d at 357.
As to the constitutional ripeness consideration, the Second Circuit provides that imposition of a final order of removal represents a "concrete injury" and "the challenges [made] to that order are well-defined and not hypothetical." Simmonds, 326 F.3d at 358. In the present case, Acevedo is subject to a final order of removal and therefore will definitely face a concrete injury when he is released from prison. See Simmonds, 326 F.3d at 358; Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59 (1978).
As to the second ripeness prong, when considering the petition of a prisoner serving an indeterminate life sentence, the Second Circuit considers (1) whether the issue before it was fit for judicial decision, and (2) whether and to what extent that petitioner would endure hardship if a decision was withheld. See Simmonds, 326 F.3d at 359; Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). In analyzing the first factor, the Simmonds Court found that because Simmonds had exhausted his administrative appeals, the issues he raised were "fit" for judicial review. Similarly, as Acevedo has exhausted his administrative remedies, his petition is "fit."
The second factor for prudential ripeness caused the Second Circuit greater pause, and ultimately led the Court to reject Simmonds' claim. The Court was troubled by the substantial length of time left on Simmonds' sentence (at least 10 years but potentially indefinite) and the potential for the relevant immigration law to change during that period — whereby rendering his claim moot. Simmonds, 326 F.3d at 360. The Court's concern stemmed from the fact that the laws concerning immigration, removal, and the rights of aliens "have been especially changeable in recent years." Simmonds, 326 F.3d at 360; see also INS v. St. Cyr, 533 U.S. 289, 297 (2001) (describing three statutory changes to the law governing discretionary waivers of deportation which occurred in the 1990's alone). As a result, the Court decided that it would be in a better position to evaluate petitioner's claims, should the claims survive, at a future date — closer to the end of petitioner's sentence. It is critical to note that after dismissing Simmonds' petition without prejudice, the Court expressly declined to elucidate when exactly the appropriate time for adjudication would arise. Therefore, while Simmonds stands for the proposition that a claim, such as the one asserted by Simmonds, is not ripe for review when it will not materialize for at least ten years, if at all, beyond this specific holding, Simmonds does not stipulate exactly where the boundaries of ripeness lie. And, as the Simmonds Court explained, "prudential rules are, after all, prudential and, thus, more mutable and more responsive to fact-intensive inquiries into context than constitutional ones . . . " Simmonds, 326 F.3d at 357. After conducting such a "fact-intensive inquir[y]," I find that Acevedo's situation differs from Simmonds' in a material manner, resulting in Acevedo's petition being ripe for review.
Though the petitioner in Simmonds argued that he would endure hardship if his case were not heard because he might be detained by the INS at the expiration of his state sentence, the Court dismissed this argument, alleging that Simmonds would only be subject to additional potentially unwarranted detention if he were prevented from challenging his removal order until after he was released — which the Court's holding would not require. Simmonds, 326 F.3d at 360. And, such hardship was only potentially potential because it was possible that Simmonds might never be released. Acevedo's assertion of hardship is less distant, with just six years left to serve, it is possible that he would not have another opportunity to file his petition, and therefore could be detained or even deported. Further, because "rules of prudence" "can be more easily scrutinized for their success in promoting better judicial decisionmaking" (Simmonds, 326 F.3d at 357-58), this Court finds that enhanced efficiency would follow by allowing Acevedo to bring his petition only once. Rather than directing Acevedo to return at a later date, a date that though sure to come, would still suffer from the same, albeit diminished, ripeness concerns, to say nothing of the heightened anxiety related to the interminable time the process frequently takes, especially for prisoners. Since the facts here are distinguishable from Simmonds, the matter may and should be adjudicated on this petition.
Regrettably, as cases sometimes take considerable time to reach fruition, if courts deny petitions on ripeness grounds until just before the petitioners are to be released, there is a substantial risk that petitioners with meritorious petitions will be deported prior to a ruling, finding such deportation unwarranted or improper. See Gonzalez v. I.N.S., 01 Civ. 6229, 2002 U.S. Dist. LEXIS 21148 (October 31, 2002) (petitioner was prematurely deported prior to holding granting him right to discretionary waiver hearing pursuant to § 212(c)).
B. Habeas Corpus Relief
1. Failure to Advise is Not Tantamount to Ineffective Assistance of Counsel
Acevedo asserts that because he was inadequately advised about the immigration consequences of his guilty plea, his conviction should be reversed. Though failing to identify any specific case or statute to support this assertion, Acevedo claims that New York state law "demands that an alien be advised of the immigration consequences of a plea." Petition 9(d); see also id. at ¶ 12(a)-(c). Despite Acevedo's general assertion to the contrary, neither New York state law nor federal law provides for the reversal of a conviction based on the absence of advice regarding deportation consequences of a guilty plea. See, e.g., United States v. Couto, 311 F.3d 179 (2d Cir. 2002) (attorney's failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness") (citations omitted); United States v. Parrino, 212 F.2d 919, 921 (2d Cir. 1954) (attorney's failure to warn alien of deportation consequences of guilty plea not basis to reverse federal conviction); see also People v. Ford, 86 N.Y.2d 397, 404-05 (N.Y. 1995) ("the court was under no obligation to inform the defendant of any possible collateral consequences of his plea, including the possibility of deportation") (citing cases). Moreover, courts in this district have consistently held that the failure to advise an alien of the immigration consequences of a guilty plea is not a proper basis upon which to challenge a final order of removal. See, e.g., Henriquez v. Reno, No. 99 Civ. 8656, 2000 WL 1644487, at *3 (S.D.N.Y. Nov. 1, 2000); Pietre v. Bintz, 2003 WL 1562273, at *4 (N.D.N.Y. March 25, 2003). Finally, "[a]n attorney's failure to advise a client that deportation is a possible consequence of a guilty plea does not constitute ineffective assistance of counsel." Kyem v. United States, No. 00 Civ. 1643, 2000 WL 1458806, at *3 (S.D.N.Y. Sep. 29, 2000); see also United States v. Santelises, 509 F.3d 703, 705 (2d Cir. 1975).
Therefore, while counsel should advise their clients of the adverse immigration consequences of a guilty plea, controlling law does not deem the failure to do so actionable. Consequently, though it may well be the case that had petitioner been armed with knowledge of the repercussions of his plea, he might have pursued another course or at least sought an agreement for a recommendation from the authorities against deportation, petitioner's prejudice does not suffice to overturn his conviction. While the law could change before release and be helpful to the petitioner, his choice is to pursue the petition now. Since New York law does not presently, and never has, required an attorney to advise a client about the immigration consequences of a guilty plea, Acevedo's claim of ineffective assistance must fail.
2. Extreme Hardships Waiver Unavailable
a) No Subject Matter Jurisdiction
Acevedo asserts that he is eligible for a waiver of deportation, pursuant to INA § 212(h), because his deportation would result in "extreme hardship" to his family. Petition ¶ 12(d). This Court may only adjudicate the claim if Acevedo raised it during his removal proceedings. Unfortunately for Acevedo, nowhere in the removal proceeding transcript is there even the slightest mention of his § 212(h) claim. Nonetheless, Acevedo points to sections of the transcript from his final proceeding before the IJ, where the transcript reads: "indiscernible" and claims that it was during those points that he raised his § 212(h) claim. I find this argument unavailing. It stretches credulity to conclude that the entire discussion of Acevedo's § 212(h) claim was "indiscernible," while the remainder of the hearing was perfectly comprehensible. Therefore, by virtue of the fact that Acevedo failed to exhaust, this Court lacks power to adjudicate Acevedo's § 212(h) claim. See Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003) (because it would not have been futile for petitioner to raise his § 212(h) claim during deportation proceedings, his failure to exhaust was not excused).
b) Extreme Hardship Not Proven
Even if this Court were to credit Acevedo's implausible theory, his § 212(h) claim would fail on the merits as he has not alleged the necessary preconditions for eligibility. As stated above, under § 212(h), the Attorney General has the discretion to waive deportation when such deportation would result in a substantial or "extreme hardship" to a United States citizen or lawful permanent resident spouse, parent, or child. 8 U.S.C. § 1182(h); See Fernandez-Antonia, 278 F.3d 150, 160 (2d Cir. 2001) (citing same). Acevedo simply fails to set forth any evidence to substantiate a claim under this statutory provision. Acevedo claims that because he fears losing his wife, six children and other family and friends, he should be entitled to discretionary relief under § 212(h). Petition ¶ 12(d). Moreover, Acevedo claims that he is entitled to relief because if deported, he "doesn't know when he will see his family again." Id. Because Acevedo alleges nothing more than a desire to be with his family, he has failed to set out a case for "extreme hardship." See Rivas v. Ashcroft, 01 Civ. 5871, 2002 WL 2005797, at *3 (S.D.N.Y. 2002) (denying INA § 212(h) claim where petitioner did not present any evidence in support of the claim); See also Fernandez-Antonia, 278 F.3d at 161 (finding that "extreme hardship" in the context of a 212(h) waiver should be construed narrowly, as the waiver itself is considered "exceptional relief).
c) Aggravated Felons Not Entitled to Relief
Even if Acevedo had established "extreme hardship," which he has not, he would nonetheless be barred from § 212(h) relief since he was convicted of committing an aggravated felony. See Fernandez-Antonia, 278 F.3d at 160-61; see also Jankowsky-Burczyk v. INS, 291 F.3d 172, 175 (2d Cir. 2002) (finding § 212(h) discretionary relief unavailable to lawful permanent residents who have been convicted of the commission of an aggravated felony); Beharry v. INS, 183 F. Supp.2d 584, 593 (E.D.N.Y. 2002) (same). The Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter "IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, substantially limit the ability of certain resident aliens to contest orders of deportation. See Brown v. United States, 2002 WL 1836752, at *1 (S.D.N.Y. Aug. 12, 2002). Though prior to the adoption of the AEDPA and the IIRIRA in 1996, aliens convicted of aggravated felonies could attain waivers of deportation under INA § 212(c) (see Green-Mendoza v. Ashcroft, 2002 WL 1870285, at *1 (S.D.N.Y. Aug. 14, 2002); Henry v. Ashcroft, 175 F. Supp.2d 688, 690 (S.D.N.Y. 2001)), since the enactment of these statutes, this avenue of relief is no longer viable.
The enactment of the AEDPA § 440(d) in 1996 "barr[ed] relief for individuals who were deportable because they had committed certain categories of offenses" — among them, aggravated felonies. Yesil v. Reno, 973 F. Supp. 372, 375 (S.D.N.Y. 1997); see also AEDPA § 440(d). Subsequently, pursuant to IIRIRA, Congress repealed § 212(c) completely and explicitly precluded aggravated felons from seeking cancellation of removal. See Brown, 2002 WL 1836752, at *1; 8 U.S.C. § 1229; St. Cyr, 533 U.S. at 297. Therefore, by virtue of his conviction, Acevedo is ineligible to receive a hardship waiver under § 212(h).
III. CONCLUSION
For the foregoing reasons, Acevedo's petition for a writ of habeas corpus is denied. Although this Court previously ordered counsel to be assigned to petitioner, after further examination of the merits, this Court determined to proceed. The Clerk of the Court is ordered to close this petition and remove this case from my docket.