Opinion
EP-00-CA-68-DB.
July, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Respondents' "Motion for Summary Judgment and Return to Petition for Habeas Corpus," filed in the above-captioned cause on May 12, 2000. Petitioner Eduardo Avila-Alvarado did not file a response.
All named Respondents — Janet Reno, United States Attorney General; Doris Meissner, Commissioner, Immigration and Naturalization Service; Luis Garcia, El Paso District Director, Immigration and Naturalization Service; Immigration and Naturalization Service; and United States Department of Justice — join in the instant Motion for Summary Judgment.
After due consideration, the Court is of the opinion that the Motion for Summary Judgment should be granted for the reasons that follow.
BACKGROUND
Petitioner is a native and citizen of the Republic of Mexico and a lawful permanent resident of the United States since 1983. On February 25, 1993, Petitioner was convicted by guilty plea of sexual assault, a felony under Nevada law, in the District Court of Clark County, Nevada. The Nevada court sentenced Petitioner to five years imprisonment.
A few months later, by a May 12, 1993, Order to Show Cause and Notice of Hearing, the Immigration and Naturalization Service ("INS") commenced proceedings to deport Petitioner based on his conviction. By oral decision on May 24, 1996, an Immigration Judge ("IJ") found Petitioner deportable based on his felony conviction and denied Petitioner certain relief from deportation under Immigration and Nationality Act ("INA") § 212(c). Petitioner appealed to the Board of Immigration Appeals ("BIA"), which dismissed his appeal by written decision dated March 21, 1997. Thereafter, the BIA reopened Petitioner's deportation proceedings. The IJ again found Petitioner deportable as charged, which Petitioner appealed to the BIA. By a per curiam decision dated November 9, 1999, the BIA affirmed the IJ's renewed ruling.
Petitioner did not appeal the BIA's decision to the United States Court of Appeals for the Fifth Circuit. Rather, he filed a Petition for Writ of Habeas Corpus ("Petition") in this Court pursuant to 28 U.S.C. § 2241to challenge his deportation and the IJ's denial of relief under § 212(c). The instant Motion for Summary Judgment followed.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994). The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id.
DISCUSSION
As an initial matter, Respondent concedes that the Court has jurisdiction under 28 U.S.C. § 2241 to hear Petitioner's claims notwithstanding the jurisdiction-stripping provisions Congress added to the INA via the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) ("IIRIRA") because Petitioner's deportation proceedings commenced before April 1, 1997. See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302-03, 306 (5th Cir. 1999) (discussing jurisdiction under IIRIRA "transitional" rules). Accordingly, the Court finds that it has jurisdiction under § 2241.
Petitioner's arguments are not complex and turn on amendments to the INA made by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). First, he contends that AEDPA § 440(d) violates the Equal Protection Clause of the Fifth Amendment to the United States Constitution because it withdrew eligibility for relief under INA § 212(c) for "deportable" but not "excludable" aliens. Second, Petitioner contends that AEDPA impermissibly limited availability of relief under INA § 212(c) to him because of his 1993 conviction, which constitutes an impermissible retroactive application of the statute because it attaches new legal consequences to that conviction.
The facts and claims in this cause bear a stunning resemblance to the facts and claims in Requena-Rodriguez. There, the petitioner, a native and citizen of Mexico who came to the United States as a lawful permanent resident in 1983, was convicted in 1994 of indecency with a child, a felony under Texas law. See id. at 301. After serving a term of imprisonment, the INS placed the petitioner in deportation proceedings and moved through those proceedings to a final order of deportation. See id. at 302. The petitioner ultimately filed a petition for writ of habeas corpus in the district court, contending that AEDPA § 440(d) violated his right to equal protection of the laws and had an improper retroactive affect on his 1994 felony conviction, making him ineligible for relief under INA § 212(c). See id. The district court found jurisdiction but ruled that the petitioner's claims had no merit. See id. On the merits, the Fifth Circuit wholly rejected both the equal protection and retroactivity arguments: "AEDPA § 440(d)'s limits on § 212(c) relief can be triggered by convictions that predate AEDPA, and its distinction between deportation and exclusion proceedings does not violate the equal protection component of the Fifth Amendment Due Process Clause." Id. at 310.
After reviewing the evidence and arguments presented, the Court finds that there is no genuine issue of disputed material fact. Furthermore because Petitioner's claims are identical to those rejected in Requena-Rodriguez, Respondent is entitled to judgment as a matter of law. Thus, the Court is of the opinion that summary judgment should enter and the Petition be dismissed.
Accordingly, IT IS HEREBY ORDERED that Respondents' Motion for Summary Judgment is GRANTED.
IT IS FURTHER ORDERED that Petitioner Eduardo Avila-Alvarado's Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE.
IT IS FINALLY ORDERED that the "Order Staying Order of Deportation" entered in this cause on March 16, 2000, is VACATED.