Opinion
01 Civ. 6229 (HB)
October 31, 2002
OPINION ORDER
Petitioner Jose Gonzalez ("Gonzalez"), a lawful permanent resident alien, was deported from the United States to his native Dominican Republic on July 26, 2001, pursuant to an order of deportation entered by an immigration judge ("IJ") and affirmed by the Board of Immigration Appeals ("BIA"). Prior to his deportation, Gonzalez filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the BIA's order of removal. Gonzalez seeks a discretionary waiver hearing under section 212(c) of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1182 (c). For the following reasons, the writ is GRANTED and this case is remanded to the BIA for a § 212(c) hearing consistent with this opinion.
I. BACKGROUND
First, I set forth the relevant law as to the forms of discretionary relief available from deportation orders. The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub.L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Pub.L. No. 104-208, 110 Stat. 3009, substantially limited 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) (Martin, J.). Prior to 1996 and the enactment of both the AEDPA and IIRIRA, a lawful permanent resident facing deportation was entitled to apply to the Attorney General for a "waiver of deportation" under INA § 212(c). See Green-Mendoza v. Ashcroft 2002 WL 1870285, at *1 (S.D.N.Y. Aug. 14, 2002) (Chin., J); Henry v. Ashcroft, 175 F. Supp.2d 688, 690 (S.D.N.Y. 2001) (Chin., J.). To be considered eligible for a § 212(c) waiver, the convicted alien was required to show that he had been admitted to the United States as a lawful permanent resident and that he had resided in this country continuously for at least seven years. See INS v. St. Cyr. 533 U.S. 289, 295 (2001) (noting that section 212(c) provided that "any permanent resident alien with a lawful unrelinquished domicile of seven consecutive years" was eligible to seek such relief). If the relief was granted, the alien would remain a permanent resident and deportation proceedings would be terminated. St. Cyr. 533 U.S. at 295. In 1990, however, as noted supra, Congress amended § 212(c) to preclude any alien from seeking a waiver if the alien had served five-years or more in prison for an aggravated felony. Id. at 297. The enactment of AEDPA § 440(d) in 1996 further amended § 212(c) by "barring relief for individuals who were deportable because they had committed certain categories of offenses," including an "aggravated felony," regardless of time served in prison. Yesil v. Reno, 973 F. Supp. 372, 375 (S.D.N.Y. 1997) (Chin, J);see also AEDPA § 440(d). Soon after, pursuant to IIRIRA, Congress repealed § 212(c) completely and replaced "deportation proceedings" with "removal proceedings," and "suspension of deportation" with "cancellation of removal" Brown, 2002 WL 1836752, at *1; 8 U.S.C. § 1229. Under the IIRIRA, anyone previously convicted of an aggravated felony was precluded from seeking cancellation of removal.St. Cyr, 533 U.S. at 297.
Although IIRIRA eliminated relief under the former § 212(c), the Supreme Court in St. Cyr held that relief nonetheless would remain available to aliens in removal proceedings who entered guilty or nolo contendere pleas before Congress enacted IIRIRA on September 30, 1996.St. Cyr. 533 US. at 326. In St. Cyr. the Supreme Court limited the retroactive effect of both the AEDPA and IIRIRA and held that "§ 212(c) relief remain(ed] available for aliens whose [preAEDPA/pre-IIRIRA] convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect."St. Cyr, 533 U.S. at 326. The Supreme Court reasoned that such aliens had "settled expectations" of qualifying for § 212(c) relief at the time they had entered their pleas and therefore Congress's repeal of the provision was impermissibly retroactive as to such aliens. St. Cyr, 533 U.S. at 326.
Gonzalez, a 41-year-old citizen and native of the Dominican Republic, was admitted to the United States as a permanent resident on August 5, 1985. (AR at 99). Gonzalez seeks a discretionary waiver hearing under § 212(c). On October 18, 1990, he pled guilty in New York State Supreme Court to attempted criminal sale of a controlled substance — cocaine — in the third degree, in violation of N.Y. Penal L. §§ 110 and 220.39. He was sentenced to five years probation, a term he completed in July 1995. (Petition at 11).
"AR" refers to the Administrative Record, attached to the Government's letter in opposition to the petition as Exhibit A. During his time in the United States, Gonzalez also used the aliases Eugenio Antonio Diaz-Guzman and Jose Boriqua. (AR at 31).
On September 2, 1995, Gonzalez was again arrested for attempted sale of cocaine, this time in the Bronx. On May 22, 1997, after a jury trial in the Supreme Court, Bronx County, Gonzalez was acquitted of attempted criminal sale of a controlled substance in the third degree but convicted of criminal possession in the third degree in violation of N.Y. Penal L. § 220.16. Gonzalez was sentenced to five to ten years in prison.
While Gonzalez was serving his time on the May 1997 conviction, the I.N.S. served him with removal papers. The I.N.S. complaint specified only the 1990 conviction as grounds for removal. At a hearing at Gowanda state prison on October 14, 1999, IJ Joe Miller determined that Gonzalez was removable on the basis of his 1990 conviction pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227 (a)(2)(A)(iii) (declaring removable an alien convicted of violating a law or regulation related to a controlled substance), and INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227 (a)(2)(B)(i) (declaring removable an alien who has committed an "aggravated felony," as that term is defined by INA § 101(a)(43), 8 U.S.C. § 1101 (a)(43)). (AR at 73-75). The IJ also determined that Gonzalez's 1990 conviction for an aggravated felony rendered him ineligible to apply for discretionary relief under the immigration laws. Accordingly, the IJ ordered Gonzalez deported following his discharge from New York State custody.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, Title III-A, 110 Stat. 3009-546 et seq. (1996), which went into effect on April 1, 1997, abolished the procedures known as "deportation" and "exclusion" and replaced them with a new process referred to in the amended INA as "removal." The term "deportation" continues to be used informally to refer to the "removal" process. See Matthew Bender, Immigration Law and Procedure § 64.01 (Lexis-Nexis: May 2002).
8 U.S.C. § 1101(a)(43) fists a number of offenses that are considered aggravated felonies for purposes of the immigration laws. Among those is "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)[.]" 8 U.S.C. § 1101(a)(43)(B);see 8 U.S.C. § 1101 (a)(43) ("The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law[.]"); 21 U.S.C. § 802 (6) 812 (defining cocaine as a controlled substance); 18 U.S.C. § 924 (c)(2) ("[T]he term `drug trafficking crime' means any felony punishable under the Controlled Substances Act ( 21 U.S.C. § 801 a seq.), the Controlled Substances Import and Export Act ( 21 U.S.C. § 951 et seq.), or the Maritime Drug Enforcement Act (46 U.S.C. App. 1901 et seq.)."); Aguirre v. INS, 79 F.3d 315, 316-317 (2d Cir. 1996) (holding that a state drug offense is an aggravated felony under 8 U.S.C. § 1101 (a)(43) if it would have been punishable as a felony under federal law).
On appeal to the BIA, Gonzalez did not challenge the IJ's finding of removability but instead asserted that the IJ had erred in not granting him some form of discretionary relief in light of his "substantial equities." (AR at 32). These equities included his marriage to a United States citizen, by which he has three children of United States citizenship, his employment for the state of New York for nine years, the fact that his crime was not a violent one, and that he had made significant progress in overcoming an addiction to drugs. These facts did not go unnoticed by the BIA, which noted that "we acknowledge that the respondent has numerous equities weighing in favor of a granting of relief from removal." (AR at 32). Nonetheless, the BIA found that it was precluded from considering those positive factors because Gonzalez was statutorily ineligible to apply for a discretionary waiver under INA § 212(h) because his 1990 conviction was for an aggravated felony. In its two-page decision, the BIA did not consider whether Gonzalez was eligible for the § 212(c) waiver, but merely noted that the section had been repealed in 1996.
The decision by the BIA, a tree member panel, was not unanimous. The sole dissenter, Lory Diana Rosenberg, citing a circuit split on the issue of the retroactivity of § 212(c), wrote an extensive 10-page dissent, arguing that Gonzalez was entitled to apply for relief under § 212(c). (AR at 33-43). In fact, her view on retroactivity was the same as that later adopted by the Supreme Court in St. Cyr.
On July 24, 2000, the BIA denied Gonzalez's motion for reconsideration. (AR at 2). On June 8, 2001, Gonzalez submitted the instant § 2241 petition to the Pro Se Clerk's Office in the Eastern District of New York which apparently forwarded it to the Southern District, where it was filed over a month later on July 11. The next day, Gonzalez was paroled from New York State custody and transferred to INS custody. See Affidavit of Mary McGarvey-Depuy, in the record ofGonzalez I. Fourteen days later, the INS deported Gonzalez to the Dominican Republic. Id. Because of the quick action by the INS, a stay of deportation was not entered before Gonzalez was deported, as should be the case when a petitioner seeks relief from a deportation order under § 2241. In any event, Gonzalez was deported before his petition was served on the government and prior to the scheduling order entered by the court.
II. DISCUSSION
A. Jurisdiction
The government asserts that petitioner's removal from the United States precludes jurisdiction over his § 2241 petition. I disagree. Under § 2241, the district court may consider a habeas petition from a prisoner who is "in custody under or by color of the authority of the United States . . ." 28 U.S.C. § 2241 (c)(1). Although Gonzalez is no longer in physical custody, having been deported, he was, however, in custody at the time he filed his petition. The statutory "in custody" requirement is therefore satisfied. See Spencer v. Kemna, 523 U.S. 1, 7 (1998) (holding that the "in custody" requirement under the federal habeas statute is satisfied if the petitioner filed petition before deportation); see also Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (stating that the "in custody" requirement for purposes of the federal habeas statutes is to be liberally construed).
The district court retains the power to hear a habeas petition from an alien prisoner challenging a denial of the right to apply for discretionary relief from removal, notwithstanding provisions in AEDPA and IIRIRA limiting judicial review of removal orders. St. Cyr II, 533 U.S. at 298-314.
The Government, in its response to the instant petition, has not contested the fact that Gonzalez was in custody at the time the petition was filed. The record in Gonzalez I suggests that Gonzalez was still in New York state custody at the rime he filed the petition presently before me. Nonetheless, the final order of deportation pending against him rendered him constructively in federal custody for purposes of 28 U.S.C. § 2241. See Mojica v. Reno, 970 F. Supp. 130, 140-41, 164-65 (E.D.N.Y. 1997) (holding that petitioner Saul Navas satisfied the in-custody requirement notwithstanding that he filed his petition while on release from detention pending deportation), aff'd in pertinent part sub nom. Henderson v. I.N.S., 157 F.3d 106, 121, 131 (2d Cir. 1998),cert. denied sub nom. Reno v. Navas, 526 U.S. 1004 (1998).
The present case differs in this respect from two of the cases cited by the Government in its letter to this court. Cf. Miranda v. Reno, 238 F.3d 1156, 1158 (9th Cir. 2001) (the in-custody requirement was not met because the petition was filed after the petitioner had been deported to Mexico), cert. denied sub nom. Miranda v. Ashcroft, 122 S.Ct. 541 (2001); Lawrence v. INS, No. 00 Civ. 3770, Report and Recommendation at 2-3 (S.D.N.Y. 2000) (the incustody requirement was nor satisfied because the Court received the petition two days after petitioner was deported).
There remains, however, the question of whether the termination of Gonzalez's detention renders the petition moot. See Spencer, 523 U.S. at 7. I am without power to hear this petition unless it presents a "case or controversy" within the meaning of Article III of the Constitution. Id. (quoting U.S. Const. art. III, § 2). For the case-or-controversy requirement to be met when a habeas petitioner is no longer in custody, the petitioner must be suffering a "concrete and continuing injury" constituting a "collateral consequence" of the petitioner's detention that can be rectified if he prevails in his quest for the writ. Id.
Before 1996, there was a more straightforward reason to dismiss a deported alien's challenge to his deportation. Before the enactment of IIRIRA, an alien who had been deported was expressly prohibited by statute from challenging his deportation once it had been carried out. INA § 106(c), 8 U.S.C. § 1105a(c), repealed by IIRIRA § 306(b), 110 Stat at 3009-612; see Edwards v. INS. 59 F.3d 5, 7 (2d Cir. 1995) (dismissing a direct appeal of a deportation order as barred by § 106(c)); Roldan v. Racette, 984 F.2d 85, 89-91 (2d Cir. 1993) (same holding with respect to a habeas petition challenging a deportation order); see generally, Alison Leal Parker, Note, In Through the Out Door? Retaining Judicial Review for Deported Lawful Permanent Resident Aliens, 101 Colum. L. Rev. 605, 616-18 (2001) (describing the legislative history of § 106(c)'s repeal).
Because this statutory bar to subject matter jurisdiction no longer exists, I must reach the issue of mootness.
The Supreme Court's recent decision in Spencer scaled back the latitude of courts to find such collateral consequences. The Court had previously held that the mere possibility of a collateral consequence was sufficient to presume as a matter of law that a challenge to a criminal conviction was not moot. Sibron v. New York, 392 U.S. 40, 54-55 (1968) (criticized by Spencer, 523 U.S. at 9-14). The rationale behind the Sibron rule was "the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences." U.S. v. Probber, 170 F.3d 345, 248 (2d Cir. 1999) (quoting Spencer, 523 U.S. at 12) (internal quotations omitted). In Spencer the Court declined to extend the benefit of this presumption to a habeas petitioner who was challenging the revocation of his parole, rater than his underlying conviction. 523 U.S. at 12. Such a petitioner, if no longer in physical custody, has the burden of demonstrating the existence of a continuing adverse legal consequence stemming from the decision he is challenging.Probber, 170 F.3d at 348 (citing Spencer, 523 U.S. at 13-14). The consequences claimed must be concrete and not merely speculative. They must not depend on a hypothetical string of intervening causes, such as the commission[by the petitioner of a future crime, the sentence for which may be enhanced by his previous criminal history, or his appearance as a witness in a proceeding where his credibility may be impeached as a result of his prior parole revocation. See Spencer, 523 U.S. at 15-16.
It is unclear whether the Spencer standard, rather than Sibron's presumption rule, governs the burden on a no-longer-in-custody petitioner who is challenging a final order of deportation. The Second Circuit recently reaffirmed that Sibron still applies in the case of a 2254 petition attacking a state conviction, even where the petitioner is a deported alien. Perez v. Greiner, 2002 WL 1586881, at *2 (2d Cir. July 19, 2002) (holding that the petitioner was entitled to a presumption of collateral consequences under Sibron, but that the presumption was overcome by the fad that there was no possibility that the reversal of the challenged state conviction could redress those consequences); cf. Probber 170 F.3d at 348, 348 n. 7 (holding that the Spencer rule should apply to the direct appeal of a revocation of supervised release because the revocation was "not sufficiently analogous to a criminal conviction to justify the presumption of collateral consequences," but declining to express an opinion on Spencer's applicability to "situations other than the revocation of parole or supervised release"); U.S. v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999) (applying the Spencer rule to an appeal of a sentencing enhancement, on the grounds that a sentencing enhancement is more analogous to a parole revocation than to a conviction).
Arguably, an administrative tribunal's decision to permanently remove an alien, such as Gonzalez, from the United States is at least as likely to have lifelong collateral consequences as a criminal conviction. Deportation has been described as a "sanction which in severity surpasses all but the most Draconian criminal penalties," Lok v. INS., 548 F.2d 37, 39 (2d Cir. 1977), and which is "at times the equivalent of banishment or exile." Costello v. INS, 376 U.S. 120, 131 (1964). Deported aliens are generally barred from readmission to the United States for a fixed number of years following their deportation, and if they have been deported for commission of an aggravated felony, as Gonzalez has, they are barred from readmission indefinitely. See INA § 212(a)(9), 8 U.S.C. § 1182(a)(9). Such a circumstance may be expected to obtain in most cases where a permanent resident has been deported and is seeking relief that, if granted, could result in the vacatur of his deportation.
The bar to readmission may be avoided only if the alien applies for and receives a waiver from the Attorney General before embarking on a vessel bound for the United States or attempting to cross the U.S. border. INA § 212(a)(9)(A)(iii), 8 U.S.C. § 1182(a)(9)(A)(iii).
Even assuming arguendo that Spencer applies, however, I find that Gonzalez has met the Spencer burden. The exclusion provisions of INA § 212(a)(9) create a sufficiently concrete collateral consequence to satisfy Article III, particularly in light of Gonzalez's understandable desire not to be separated from his family. See Perez, 2002 WL 1586881, at *2 ("If, instead, the present conviction for robbery in the second degree stands, Perez will be barred [as an aggravated felon] from ever reentering the United States without the permission of the United States Attorney General. . . Such a barrier to reentry clearly would suffice to prevent Perez's habeas from being mooted."); Steele v. Blackman, 236 F.3d 130, 135 n. 4 (3d Cir. 2001) (holding that a determination that an alien is an aggravated felon would have "several continuing and serious legal consequences for [him], including serving as a permanent bar preventing his return to the United States to visit his family.") (cited by Perez, 2002 WL 1586881, at *2); Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000) (holding that a habeas challenge to a deportation order was not mooted when the petitioner would be excluded from readmission for a ten-year period), vacated on other grounds sub nom. Max-George v. Ashcroft, 533 U.S. 945 (2001); Cuevas-Diaz v. Ashcroft, 2002 WL 1352471, at *2 (9th Cir. 2002) (holding that a challenge to the BIA's determination that the petitioner was an aggravated felon was not moot, because the petitioner would be excluded from readmission under INA § 212(a)(9)); Tapia Garcia v. INS, 237 F.3d 1216, 1218 (10th Cir. 2001) ("[Petitioner's] inability to reenter and reside legally in the United States with his family is a collateral consequence of his deportation because it is clearly a concrete disadvantage imposed as a matter of law.") (cited by Perez, 2002 WL 1586881, at *2); Fuller v. INS, 144 F. Supp.2d 72, 86-87 (D. Coma. 2000) (citing NA § 212(a)(9) as a "repercussion" that justifies the court's continued exercise of jurisdiction following the petitioner's deportation).
Cf. Maung v. McElroy, 1998 WL 896709 (S.D.N.Y. 1998), a case the Government relies on in its brief. Government Letter to the Court, at 4. In Maung, the petitioner, a Burmese native, wrote the court to say that be wanted to be deported to Burma as soon as possible. He "did not challenge the merits of his deportation order but rather sought release until his deportation could be effectuated[.]" Id. at 2. Once he was deported, the petition therefore became moot Id.
Because Gonzalez is a pro se litigant I must "read his supporting papers liberally . . . interpret[ing] them to raise the strongest argument they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Though Gonzalez has not been in contact with this Court since his deportation in July of last year and has not briefed the mootness issue, the 8-page memorandum of law and accompanying exhibits he submitted in support of his petition allege sufficient facts for me to conclude that he is now, by virtue of the BIA's removal order, subject to an indefinite bar to readmission. See, e.g., Petition at 3-6 (recounting the facts and procedural posture of the case); id. Ex. A (containing a copy of the BIA decision). His petition therefore is not moot.
The extent to which such liberal construction may be made depends on the strength of the facts bearing on the issue of mootness. For example, in Ramirez v. INS, 86 F. Supp.2d 301 (S.D.N.Y. 2000) (HB) (AJP), it was not possible to find a continuing injury redressable by the relief sought, where the petitioner objected only to the venue of his deportation hearing rater than the substantive findings of the IJ and the BIA, and he did not present any argument on the issue of mootness. But see Sule v. INS, 189 F.3d 478, 478 (10th Cir. 1999) ("Although we strongly suspect that deportation may, as a matter of law, always entail collateral consequences, we need not and do not resolve that issue in this case. Sule has failed to advance any argument regarding collateral consequences, and even though he appears pro se, we cannot make his argument for him.").
It should also be noted that the present case is distinguishable on the facts from both Gonzalez I and Perez. In Gonzalez I, was asking for his 1997 conviction to be overturned. Since such a remedy would not invalidate his deportation order, based as it was on his 1990 conviction Judge Gorenstein could not consider any collateral consequences flowing from his deportation. Gonzalez I, Report and Recommendation at 4-5.
In Perez the petitioner challenged one of two convictions he had, both for aggravated felonies. Perez. 2002 WL 1586881, at *2. Either of these convictions would have indefinitely barred Perez from readmission to the United States. Id. His deportation had been based on neither of these convictions, but rather on the charge that he had entered the United States without inspection. Id. Because granting his § 2254 petition would not have affected the grounds of his deportation, he would still have had to be readmitted if he sought to return to the United States. Yet his readinission would have been barred by his other aggravated felony conviction. Id. Here, by contrast, issues of inadmissibility as a result of Gonzalez's convictions need not be reached, because if erroneously deported, he need not be readmitted.
III. MERITS
Gonzalez asks this court to reverse the BIA's decision that held him ineligible for a waiver under INA § 212(c), and to remand the case so that the BIA may determine whether the equities favor granting such a waiver, as the BIA itself suggested it might. Petition at 7. Determining whether he is entitled to such relief requires me to visit a region of the law that has been described as "infinitely complex," Kuhali v. Reno, 266 F.3d 93, 98 (2d Cir. 2001), and has been compared unfavorably to the labyrinth of ancient Crete. Lok, 548 F.2d at 38.
INA § 212(c) permits certain eligible aliens facing deportation to request a discretionary waiver of deportation from the Attorney General.See supra, note 4. The Attorney General has delegated to the administrative tribunals of the Executive Office for Immigration Review (the BIA and the immigration judges) the authority to grant such waivers. The decision to grant the waiver is a two-step process for the administrative tribunal. First, it must determine whether the alien requesting the waiver is eligible under the statute to do so. If so, then the tribunal exercises its executive discretion, considering the equities for and against a grant of relief
Gonzalez's 1990 guilty plea was the sole basis of the deportation order against him. The St. Cyr rule therefore applies, and I must examine whether Gonzalez meets the eligibility requirements of the pre-AEDPA version of § 212(c). See supra, note 4. Gonzalez was "lawfully admitted for permanent residence" in 1985. INA § 212(c), 8 U.S.C.A. 1182(c) (1994). At the time of the BIA's decision, Gonzalez had a "lawful unrelinquished [U.S.] domicile of at least seven consecutive years." INA § 212(c), 8 U.S.C.A. 1182(c) (1994).
The fact that Gonzalez was a lawful permanent resident gives rise to a presumption that he established a lawful domicile here. The presumption is bolstered by Gonzalez's statements evincing his Intent to remain in the United States. The Government has not offered any argument or evidence to suggest that Gonzalez did not have a lawful domicile in the United States from 1985 through the time that the BIA denied his request for § 212(c) relief.
Section 212(c) in its pre-AEDPA form also excluded from eligibility "an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least five years." Id. I see no reason to question the BIA's conclusion that Gonzalez's 1990 offense was an aggravated felony. He did not serve any term of imprisonment for that offense, however, receiving a sentence of five years probation.
Congress added this language to § 212(c) several weeks after Gonzalez's October 18, 1990, guilty plea. Immigration Act of 1990, Pub.L. 101-649, § 511(a), 104 Stat. 4978, 5052 (Nov. 29, 1990) ("Section 212(c) ( 8 U.S.C. § 1182 (c)) is amended by adding at the end the following: `The first sentence of this subsecton shall not apply to an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least five years[.'"]); see also Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub.L. 102-232, § 306 (10), 105 Stat. 1733, 1751 (Dec. 12, 1991) (striking "an aggravated felony and has served" and inserting "one or more aggravated felonies and has served for such felony or felonies"). Nonetheless, the language retroactively applies to offenses committed before the enactment of the 1990 Immigration Act Buitrago-Cuesta v. INS, 7 F.3d 291, 294-95 (2d Cir. 1993) (finding in the language of§ 511 of the 1990 Immigration Act evidence of congressional intent that it apply retroactively).
Gonzalez himself questions whether his conviction was an aggravated felony, asserting without further argument that his offense was not included within INA § 101(a)(43)'s definition of aggravated felony until that paragraph was amended by the Immigration and Nationality Technical Corrections Act of 1994, Pub.L. 103-416, § 222(a), 108 Stat. 4305, 4320-22 (1994) (expanding the definition of aggravated felony). (Petition at 7). it is not clear what basis he has for this assertion since, as early as 1988, INA § 101(a)(43) contained language making "any drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code" an aggravated felony. Anti-Drug Abuse Act of 1988, Pub.L. 100-690, § 7342, 102 Stat. 4181, 4469 (inserting § 101(a)(43) into the INA); see also 18 U.S.C. § 924 (c)(2) (defining "drug trafficking crime" to include "any felony punishable under the Controlled Substances Act ( 21 U.S.C. § 801 et seq.)") (language added by Anti-Drug Abuse Act of 1988, § 6460); Aguirre v. INS, 75 F.3d 315, 317 (2d Cir. 1996) (adopting the BIA's holding that a state offense that would have been punishable as a federal felony under one of the statutes cited in 18 U.S.C. § 924(c)(2) is an aggravated felony).
At any rate, I need not reach that question, because the current version of INA § 101(a)(43) is applicable to all convictions, regardless of when they occurred. INA § 101(a)(43) (last sentence) ("Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether conviction was entered before, on, or after September 30, 1996.); St Cyr II, 533 U.S. at 319 (citing This sentence, which was inserted by IIRIRA § 321(b), as an example of `Congress' willingness, in other sections of IIRIRA, to indicate unambiguously its intention to apply specific provisions retroactively").
As for his 1997 conviction, tough the Government implies that this offense was also an aggravated felony (Government Letter at 4-6), it is not clear from the record that it is. Gonzalez was convicted of criminal possession of a controlled substance in the third degree. In Aguirre v. INS, the Second Circuit held that an alien convicted under New York law of criminal possession of a controlled substance in the second degree was not an aggravated felon for purposes of INA § 101(a)(43), because his offense was not punishable as a felony under the analogous federal statute. 79 F.3d 315, 317 (2d Cir. 1996). To decide whether the 1997 offense was an aggravated felony under the Aguirre rule, I would have to examine Gonzalez's criminal conduct and compare it to the elements of analogous federal offenses.
Aguirre's criminal conduct consisted of possession of at least two ounces of cocaine. Aguirre, 79 F.3d at 316. Aguirre reversed the position taken earlier by the Second Circuit in Jenkins v. INS. 32 F.3d 11, 14 (2d Cir. 1994) (holding that a state drug offense is an aggravated felony if it is classified as a felony under state law and is punishable under the applicable federal statutes, regardless of whether it would be a felony if prosecuted under federal law). The Aguirre court did so in the interest of national uniformity in the application of immigration law, because the BIA had differed with Jenkins adopting the interpretation later sanctioned by Aguirre, and had announced that it would apply this rule in cases arising in circuits other than the Second. Aguirre, 79 F.3d at 317 (citing In re L-G-, Interim Decision 3234 (BIA 1994)). The BIA has since abandoned the position of In re L-G-. on the grounds that the majority of the circuits that have addressed the issue have sided with the Jenkins approach. In re Yanez-Garcia, 23 I. N. Dec. 390, 395-96 (BIA 2002). The BIA has indicated, however, that it will continue to apply Aguirre to cases arising in the Second Circuit Yanez-Garria, 23 I. N. Dec. at 391, 395.
I need not do that, however, because even assuming that the 1997 offense was an aggravated felony, Gonzalez served less than five years in prison following his conviction on May 22, 1997. See Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (holding that § 212(c)'s five-year period refers to time actually served, regardless of the length of the sentence); Buitrago-Cuesta v. INS. 7 F.3d 291, 295-96 (2d Cir. 1993) (measuring the five-year period from the date of conviction).
Buitrago-Cuesta had been arrested on March 7, 1986, and was in custody from the time of his arrest through his conviction.Buitrago-Cuesta, 7 F.3d at 293. The court stated that he became ineligible for § 212(c) relief on July 3, 1991, the fifth anniversary of his conviction. Id. at 296. The present record does not disclose whether Gonzalez was in custody between the time of his arrest in 1995 and his conviction in 1997.
The BIA was therefore in error when it denied Gonzalez the opportunity to apply for § 212(c) relief.
IV. REMAND
The Government argues that I should not grant the writ and remand to the BIA even if I find that Gonzalez was eligible for § 212(c) relief, because Gonzalez remains deportable on the basis of his 1997 conviction, and he is not eligible for a § 212(c) waiver with respect to that conviction. (Government Letter at 4).
"The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based."Securities and Exchange Comm'n v. Chenery Corp. 318 U.S. 80, 87 (1943).In National Labor Relations Board v. American Geri-Care, Inc., 697 F.2d 56 (2d Cir. 1982), cert. denied 461 U.S. 906 (1983), the Second Circuit held that Chenery does not require reversal and remand whenever a court finds legal error in an administrative order; reversal and remand is required, however, if "there is a significant chance that, but for the error, the agency might have reached a different result." 697 F.2d at 64. Moreover, when remand is riot required, that does not mean that it is prohibited.
Of Gonzalez's two convictions, only the 1990 guilty plea was before the IJ and the BIA in the proceedings below. (AR 44-45, 73-87) There is no formal finding from either of the administrative tribunals that Gonzalez's 1997 conviction is a deportable offense, much less that it is a ground for deportation from which he is ineligible to apply for a waiver. In American Geri-Care, the court decided that, notwithstanding the NLRB's possible error in shifting the burden of proof in a wrongful termination case from the NLRB general counsel to the respondent employer, the matter need not be remanded because the NLRB's opinion disclosed adequate independent grounds to support its finding that the respondent was at fault. 697 F.2d at 63-64. By contrast, the BIA's opinion in the present case indicates that Gonzalez actually would have had a substantial chance of receiving § 212(c) relief, but for § 212(c)'s repeal. (AR. 32). The BIA does not make any mention of the possibility that Gonzalez's 1997 conviction would render any § 212(c) relief moot or for that matter that it was even before them.
The BIA's decision and its subsequent denial of the motion for reconsideration make no mention of the 1997 conviction. (AR 2, 44-45). The transcript of Gonzalez's first hearing before IJ Miller (AR 80-81) contains the following exchange between the IJ and Gonzalez, through an interpreter, regarding the 1997 case (which began with Gonzalez's arrest in 1995):
Q: . . . Do you want some time so that you or your family can try to get you a lawyer?
A: I would like to ask a question because my case is under appeal.
Q: From 1990? Nine years ago?
A: The `95 case. `95 case.
Q: You're not in this Court for the `95 case. You're only here for the 1990 case and it's not on appeal
A: I have to wait until the Appeal's Court [sic] resolves my case.
Q: Your case on appeal is not in my Court. You're not trying to be deported for that case at all. Your 1995 case is not before this Court and it does not matter whether it's on appeal or not. You're going to have to defend on this case from the 1990 attempted sale conviction. And it's pot on appeal. I'm going to ask you one more time, do you want a lawyer to try to help you out in your 1990 case or not?
A: Yes. Yes, I need a lawyer.
It is not at all clear that the BIA would allow the INS to assert a novel ground of deportability on appeal, when the appropriate notice has not been served on the alien with respect to the new charge, and the alien has not had the opportunity to litigate the new charge before an IJ. See INA § 239(a)(1)(D), 8 U.S.C. § 1229 (a)(1)(D) (requiring the INS must serve notice upon an alien it proposes to deport, which notice must specify the "charges against the alien and the statutory provisions alleged to have been violated"); 8 C.F.R. § 239.1 (a) ("Every removal proceeding . . . is commenced by the filing of a notice to appear with the Immigration Court."); 8 C.F.R. § 3.30 (providing for the lodging of additional charges by the INS while removal proceedings are pending, and specifying the notice requirements associated with the filing of additional charges).
As the administrative body with primary responsibility for interpreting the INA and related federal regulations, the BIA is best situated to determine whether and how the INS may institute new removal proceedings on the basis of the 1997 conviction, and what effect these might have on Gonzalez's application for § 212(c) relief with respect to the existing removal order. See As the administrative body with primary responsibility for interpreting the INA and related federal regulations, the BIA is best situated to determine whether and how the INS may institute new removal proceedings on the basis of the 1997 conviction, and what effect these might have on Gonzalez's application for § 212(c) relief with respect to the existing removal order. See Bosquet v. INS, 2001 WL 1029638, at *3 (S.D.N.Y. 2001) (reversing the BIA's conclusion that an alien was ineligible for § 212(c) relief because AEDPA § 440(d) retroactively applied to an alien's 1994 guilty plea, and remanding for the BIA either to decide whether to grant the waiver, or, in the alternative, to conclude that the alien was ineligible for § 212(c) relief because he had passed the five-year mark in prison since the time of the BIA's initial decision); Kouame v. Slattery, 1993 WL 313051, at *1 (S.D.N.Y. 1993) (reversing the BIA's conclusion that an alien's testimony, even if true, "did not establish a well-founded fear of persecution or past persecution" sufficient to warrant a grant of asylum, but remanding because it was not clear whether the BIA intended to rely, as an alternative ground for decision, on the IJ's finding that the alien lacked credibility). Accordingly, the case is remanded to the BIA for consideration of Gonzalez's application for § 212(c) relief from the present order of deportation.
The government is ordered to notify Gonzalez of my decision, and at the same time to notify his next of kin in the United States. Given Gonzalez's abrupt deportation, he is no longer present in the United States to assist in the preparation of his § 212(c) hearing. To prepare for his hearing, Gonzalez or his family on his behalf may wish to petition the Attorney General, pursuant to 8 U.S.C. § 1182(a)(9)(iii), to obtain a waiver to re-admit Gonzalez to the United States and, assuming he is unable to retain an attorney, apply to the Pro Se Office at the United States District Court in the Southern District of New York to request a pro bono attorney or be in touch with chambers for aid with legal help. We decline to reach the issue of our authority to order INS to return Gonzalez to the United States, but the question is not free from doubt. See Fuller, 144 F. Supp.2d at 89; Dennis v. INS, 2002 WL 295100, at *3 (D. Conn. February 19, 2002) (ordering INS to return a habeas petitioner after he was prematurely deported). The clerk is instructed to close this case and any open motions.