Opinion
00 Civ. 8731(GBD).
November 27, 2000.
MEMORANDUM OPINION AND ORDER
Petitioner, Euclides Gomera, brought a petition before this Court on November 15, 2000 for a Writ of Habeas Corpus and moved for a Temporary Restraining Order ("TRO") to stay deportation.
Petitioner seeks to enjoin his deportation from the United States to the Dominican Republic. He alleges that he has been a Lawful Permanent Resident of the United States since March 22, 1970, his wife is a citizen of the United States, and his mother and sister are Lawful Permanent Residents of the United States. On February 7, 1987, Petitioner was convicted in New York State Supreme Court, County of Queens of criminal possession of marijuana in the fifth degree in violation of Penal Law § 221.10. Subsequently, on November 18, 1998, petitioner was convicted in New York State Supreme Court, County of Queens of two counts of attempted criminal possession of a controlled substance in the third degree in violation of Penal Law § 110/220.16. He was sentenced to two concurrent terms of one to three years imprisonment.
Based on these 1998 convictions, petitioner was placed into removal proceedings pursuant to sections 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i). On August 9, 1999, the Immigration Judge found that petitioner was subject to removal as charged and ineligible for relief from removal. Petitioner was then ordered removed from the United States. On February 11, 2000, the Board of Immigration Appeals (the "Board") remanded the case back to the Immigration Judge for further proceedings because it determined that his two concurrent 1998 drug convictions did not constitute "a prior drug conviction," and were therefore not aggravated felonies on that basis.
On April 26, 2000, an additional charge of removability was filed against petitioner based on his February 7, 1987 prior marijuana conviction. The petitioner was again charged with being subject to removal pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B). On May 16, 2000, the Immigration Judge found that petitioner was removable as charged and ineligible for cancellation from removal. Petitioner then appealed that decision to the Board.
On November 6, 2000, the Board issued its opinion finding that petitioner was an aggravated felon pursuant to Section l0l(a)(43)(B) of the Immigration and Nationality Act which defines an aggravated felony as "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." The Board further noted that "a state drug offense qualifies as a `drug trafficking crime' under 18 U.S.C. § 924(c)(2) if it is punishable as a felony under the Controlled Substance Act ( 21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act ( 21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.)." The Board found that since petitioner's 1998 convictions occurred after his 1987 conviction for marijuana possession, that his 1998 offenses were therefore committed after "a prior drug conviction" and were therefore punishable under federal law by a term of imprisonment of up to two years. Petitioner's 1998 crimes were "analogous to felonies under the federal statutes enumerated in 18 U.S.C. § 924(c)(2) (`federal drug laws'), and he therefore [was] convicted of an aggravated felony as defined in section 101(a)(43)(B) of the [Immigration and Nationality] Act." The Board held that the Immigration Judge correctly determined that petitioner was an aggravated felon and therefore ineligible for the relief of cancellation from removal, and dismissed petitioner's appeal.
Petitioner then moved this Court for a writ of habeas corpus to enjoin petitioner's "imminent deportation from the United States." Petitioner alleges that the decision of the Board of Immigration appeals contravenes the law of this Circuit as enunciated in St. Cyr v. Immigration and Naturalization Service, 229 F.3d 406 (2d Cir. 2000). He argues that this Court should issue a Writ of Habeas Corpus directing respondents to show cause why petitioner should not be discharged "from the restraint of liberty now imposed on him by defendant [sic]" and temporarily bar and enjoin respondents from deporting or otherwise causing petitioner to be deported.
In St. Cyr v. Immigration and Naturalization Service, 229 F.3d 406 (2d Cir. 2000), the Second Circuit determined that the bar to discretionary relief from removal should not be applied retroactively to pleas of guilty or nolo contendere entered before the enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") Pub.L. No. 104-132, 110 Stat. 1214 et seq. (1996) and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") Pub.L. No. 104-208, 110 Stat. 3009-546 et seq. (1996) ("the statutes"). In St. Cyr, the petitioner pled guilty to the qualifying crime which rendered him ineligible for discretionary relief from deportation before the enactment of AEDPA and IIRIRA. The Second Circuit reasoned
Because there is sufficient evidence that a legal resident accused of a crime that renders him or her removable from this country would have conformed his or her conduct according to the availability of relief when he or she pled guilty. AEDPA § 440(d) and IIRIRA § 304 would severely upset settled expectations were it applied retroactively to pre-enactment guilty pleas. A repeal of the eligibility to apply for relief from removal would attach new legal consequences to a legal resident's guilty plea to a removal crime.St. Cyr, 229 F.3d at 419.
The facts in the instant case are clearly distinguishable from those facts presented to the Second Circuit in St. Cyr. While petitioner's original criminal conviction occurred before the enactment of AEDPA and IIRIRA, his subsequent convictions occurred after the enactment of these statutes. Given that his subsequent conviction for cocaine possession in 1998, which was the "qualifying crime" rendering petitioner ineligible for cancellation of removal, occurred after the enactment of the statutes, the reasoning in the St. Cyr decision does not apply here. Petitioner's conviction in 1998 is the felony aggravated by his first conviction in 1987.
See IIRIRA § 304, 8 U.S.C. § 1229b(a)(3) "The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien . . . has not been convicted of any aggravated felony" (emphasis supplied).
Petitioner further contended in oral argument before this Court on November 20, 2000 that the reasoning in St. Cyr should be extended to mandate that prior convictions which qualify a subsequent offense as an aggravated felony must occur after the enactment of the statutes in order for petitioner to be ineligible for discretionary relief from deportation. There is no indication that the Second Circuit required that those prior crimes, as well as the aggravated felony, must occur after the enactment of the statute. In St. Cyr, the defendant pled guilty to an aggravated felony before the enactment of the statutes, therefore, he was not aware that his guilty plea would render him deportable and ineligible for relief from deportation at the time of his plea. In the instant case, the statutes were already enacted at the time petitioner was convicted of his 1998 cocaine offense, therefore, he was on notice that the commission of a new felony in conjunction with his prior 1987 conviction would render him an aggravated felon ineligible for cancellation of removal.
Courts have often held that a defendant who pleads guilty to a crime before the enactment of a statute can still be subject to that statute's enhanced or aggravated penalty. See e.g. Gryger v. Burke, 334 U.S. 728 (1948) (finding that a state habitual criminal statute enhancing penalties for future crimes because of prior crimes committed before the enactment of the statute did not make the act invalidly retroactive or subject individuals to double jeopardy); Covington v. Sullivan, 823 F.2d 37 (2d Cir. 1987) (finding that reclassification a crime as a violent felony offense after conviction which enhanced defendant's penalties when he was convicted of a second violent felony did not impair his protection under the Ex Post Facto Clause). Therefore, petitioner's ineligibility for relief from deportation due to his 1998 conviction "is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one." Gryger, 334 U.S. at 732.
Petitioner Gomera's petition for a Writ of Habeas Corpus and Motion for a Temporary Restraining Order to stay deportation are therefore DENIED.