Opinion
99 Civ. 8656 (RWS).
November 1, 2000.
Irving Henriquez, Haverstraw, NY, Petitioner Pro Se.
James A. O'Brien, III, ESQ., Special Assistant US Attorney, Of Counsel, HONORABLE MARY JO WHITE, United States Attorney for the Southern District of New York, New York, NY, Attorney for Respondent.
OPINION
Petitioner Irving Henriquez ("Henriquez") seeks a writ of habeas corpus on the grounds that the Immigration Judge ("IJ") and Board of Immigration Appeals ("BIA") made an error of law in finding that he was not eligible to petition for relief from deportation. For the reasons set forth below, the petition is denied.
Background and Prior Proceedings
Henriquez, a citizen of the Dominican Republic, entered the United States as a lawful permanent resident on May 20, 1988. He subsequently married and has lived in New York with his wife and two American-born daughters ever since. His daughter Irvania suffers from a tethered spinal cord and associated limb ailments, a condition which requires ongoing medical care.
In addition to one youthful offender charge, Henriquez has on three occasions pled guilty to criminal charges. On April 15, 1992, Henriquez pled guilty to criminal trespass and was sentenced by a local court to a jail term of ten days. On July 22, 1992, Henriquez pled guilty to sexual misconduct and received a conditional discharge. On January 7, 1997, at the age of 24, Henriquez was arrested for selling cocaine to an undercover police officer, and pled guilty in the Rockland County Court to the criminal sale of cocaine in the third degree on April 30, 1997. Henriquez was sentenced to a one to three year term of incarceration.
The Immigration and Naturalization Service ("INS") commenced removal proceedings against Henriquez in November of 1997 on the grounds that his latest conviction rendered him removable under the newly enacted amendment to the Immigration and Naturalization Act ("INA"), the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), as an alien convicted of an aggravated felony, 8 U.S.C. § 1227 (a)(2)(A)(iii), (a)(2)(B)(i) and also as an alien convicted of violating a controlled substance law, 8 U.S.C. § 1101 (a)(43)(B) (1996).
A removal hearing commenced on January 20, 1998 in the Ulster Correctional Facility, where Henriquez was serving his sentence, and was adjourned several times to allow Henriquez the opportunity to retain counsel. While conceding removability based upon his conviction, Henriquez submitted numerous documents to the IJ including recent tax returns and his daughter's medical records in support of his application for relief from removal. The IJ found Henriquez to be removable on the basis of his 1997 conviction, and that he was statutorily ineligible for cancellation of removal under INA § 240(a), 8 U.S.C. § 1229b (a) (Supp. II 1996). Henriquez was ordered removed to the Dominican Republic.
Henriquez filed a timely appeal to the BIA, which vacated the IJ's decision on September 18, 1998, because the IJ had failed to issue a full decision including the factual and legal basis for his conclusions. The IJ issued a written opinion on October 9, 1998, holding that Henriquez was removable because his 1997 conviction constituted an "aggravated felony," and that the nature of the crime rendered him statutorily ineligible for cancellation of removal. Henriquez again appealed to the BIA, which on May 25, 1999 dismissed the case upon finding that Henriquez was ineligible for relief from deportation either in the form of cancellation of removal pursuant to 8 U.S.C. § 1229b (a)(3) or a hardship waiver under INA § 212(h), 8 U.S.C. § 1182 (h) (Supp. II 1996).
Henriquez timely filed the instant pro se petition for a writ of habeas corpus on June 18, 1999, in which he raised the following claims: (1) the INS did not sufficiently prove facts at the hearing that would support the finding that his crime constitutes an aggravated felony; (2) he was never advised of the immigration consequences of pleading guilty to the drug offense in 1997; (3) the bar on discretionary relief from deportation for aliens convicted of aggravated felonies was impermissibly applied to him retroactively, although his right to relief vested under prior law on January 7, 1997, the date of the offense; and (4) he merits relief from deportability under former INA §§ 212(c) and 212(h) due to his daughter's medical circumstances.
The government responded on November 8, 1999, and requested that the petition be placed in abeyance pending the Second Circuit's resolution of Calcano-Martinez v. INS, No. 98-4033 (filed June 4, 1998) and companion cases, which would resolve the preliminary question of whether district courts have subject matter jurisdiction to review aliens' removal orders at all under the jurisdiction-stripping provisions of IIRIRA.
By order of January 25, 2000, this Court ordered a stay of Henriquez's removal and held decision on the petition until the resolution of Calcano-Martinez. When the Second Circuit issued its opinion in that case, see Nos. 98-4033, 98-4214, 98-4216, 2000 WL 1336611 (2d Cir. Sept. 1, 2000), Henriquez's petition was placed back on this Court's pending docket.
Discussion
I. This rCourt Has Jurisdiction Over Henriquez's Petition
Although it argued that the permanent provisions of IIRIRA deprive this Court of jurisdiction over Henriquez's habeas petition, the government requested that this case be held in abeyance until the Second Circuit addressed the issue inCalcano-Martinez. On September 1, 2000, the Second Circuit held that "IIRIRA's permanent rules do not repeal a federal court's jurisdiction to review criminal aliens' removal orders by writ of habeas corpus under 28 U.S.C. § 2241." Calcano-Martinez, 2000 WL 1336611, at *1. Under the clear mandate of Calcano-Martinez, this Court has habeas corpus jurisdiction over Henriquez's petition.II. The IJ Had Sufficient Proof of Conviction of an Aggravated Felony to Adjudge Henriquez Removable
Henriquez first claims that insufficient evidence was presented to the IJ to support a finding that he committed an aggravated felony. However, certified copies of Henriquez's criminal history sheet, Pre-Dispositional/Pre-Plea/Pre-Sentence Investigation Report Facesheet, and Disposition were introduced as Exhibits without objection at the hearing. (See Gov't Response Ex. A at 136-139 (INS Exs. 3-4)). Each of these documents reflected that Henriquez pled guilty to the criminal sale of cocaine in the third degree in violation of N.Y. Penal Law § 220.39.
IIRIRA provides that resident aliens are deportable if they have been convicted of an aggravated felony, see 8 U.S.C. § 1227 (a)(2)(A)(iii), or of a controlled substance law, see § 1227(a)(2)(B)(i). Section 1101 (43)(B) defines an aggravated felony as including a drug trafficking crime as set forth in 18 U.S.C. § 924 (c), namely a state conviction for the sale of narcotics that would be subject to federal felony prosecution.
Henriquez's guilty plea to selling narcotics clearly qualifies as an "aggravated felony" under this standard. As such, the IJ had sufficient evidence on which to find Henriquez deportable.
III. A Criminal Attorney's Failure to Advise an Alien of the Immigration Implications of Pleading Guilty Does Not Create a Legal Basis for Challenging the Resulting Removal OrderNext, Henriquez alleges that he should not be deported because his criminal attorney was constitutionally ineffective in failing to advise him that he could be deported as a result of pleading guilty to the sale of drugs.
Criminal defense attorneys are under a professional obligation to advise their clients of the immigration consequences of a plea or conviction. See Magana-Pizano v. INS, 200 F.3d 603, 612 (9th Cir. 1999); Michel v. United States, 507 F.2d 461, 465-466 (2d Cir. 1974) (recognized defense counsel's obligation to advise about the "indirect consequences the guilty plea may trigger," including deportation); Mojica v. Reno, 970 F. Supp. 130, 175 (E.D.N.Y. 1997) (surveying with approval various approaches to attorneys' responsibility to inform alien defendants of deportation implications of guilty pleas), aff'd sub nom. Henderson v. I.N.S., 157 F.3d 106 (2d Cir. 1998), cert. denied sub nom; Navas v. Reno, 526 U.S. 1004, 119 S.Ct. 1141, 143 L.Ed.2d 209 (1999).
However, while criminal defendants have a constitutional right to be advised as to the direct consequences of a plea (such as incarceration), they currently have no right to be advised of collateral consequences such as the loss of the right to vote, loss of a driver's license, or deportation. New York's highest court has held that criminal defendants have no constitutional right to be advised — either by counsel or by the court — that pleading guilty will result in deportation. People v. Ford, 86 N.Y.2d 397, 657 N.E.2d 265, 633 N.Y.S.2d 270 (N Y App. Ct. 1995). The Second Circuit has adopted the same rule for guilty pleas entered in federal courts. See United States v. Parrino, 212 F.2d 919, 921 (2d Cir. 1954), cert. denied 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663.
Although, as the Ford court noted, the New York Sentencing Reform Act of 1995 requires trial courts to advise defendants of the possibility of deportation, the failure to do so does not affect the voluntariness of a guilty plea or otherwise provide cause for withdrawing the plea. See N.Y. Sentencing Reform Act of 1995 §§ 30, 74 b; Ford, 86 N.Y.2d at 403 n.*.
Thus, his attorney's failure to warn him that pleading guilty to the sale of narcotics was subjecting him to deportation does not provide a legal basis for challenging the BIA's decision to dismiss Henriquez's appeal.
IV. The Bar to Relief from Deportation Properly Applies
Third, Henriquez alleges that the IJ impermissibly applied IIRIRA's bar to relief from deportation for aggravated felons to his case retroactively, and that, because the aggravated felony took place on January 7, 1997, he should still be eligible for relief from deportation under pre-IIRIRA law.
Several provisions in the former INA granted the Attorney General the discretion to waive deportation, including former INA §§ 212(c) and 212(h). Section 212(c) provided for discretionary waiver of deportation for convicted aliens who could prove that they lived in the United States continuously for at least 7 years, had not been convicted of one or more "aggravated felonies," and who had not served a term of five or more years in prison. See 8 U.S.C. § 1182 (c)(1994). Former INA § 212(h) provided for discretionary waiver of deportation for aliens whose deportation would cause undue hardship to remaining family members. See 8 U.S.C. § 1182 (h) (1994).
On April 24, 1996, Congress amended the INA through the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 et seq. (1996). Section 440(d) of AEDPA expanded the kinds of criminal convictions that would bar an alien from seeking § 212(c) relief. Section 440(d) deleted the language referring to one or more aggravated felony convictions and substituted the following:
This section shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in section 241(a)(2)(A)(iii), (B), (C) or (D), or any offense covered by section 241(a) (2)(A)(ii) for which both predicate offenses are covered by section 241(A)(2)(A)(i).
AEPA § 440(d), 110 Stat. at 1277 (codified by IIRIRA as INA § 237, 8 U.S.C. § 1227).
Soon thereafter, on September 30, 1996, Congress again amended the INA, this time by passing IIRIRA. IIRIRA included transitional rules, which provided that the Attorney General retained the discretion to grant relief from deportation under INA § 212(c) as amended by AEDPA § 440(d) for those aliens who were already in deportation proceedings prior to April 1, 1997. See IIRIPA § 309(c)(1), 110 Stat. at 3009-625 (stating that most IIRIRA amendments to INA do not apply to aliens in deportation proceedings prior to April 1, 1997); St. Cyr v. INS, No. 99-2614, 2000 WL 1234850, *5 (2d Cir. Sept. 1, 2000).
The permanent rules of IIRIRA, which applied to all other aliens, repealed INA § 212(c) relief in its entirety and channeled all formerly available methods of relief into a new procedure entitled "cancellation of removal." See 8 U.S.C. § 1229b (A)(3)(1999). This form of relief, set forth in IIRIRA § 304(a), was not available to aliens who have been convicted of any aggravated felony, as that term was more broadly defined by IIRIRA, but did restore the possibility of discretionary relief for aliens who had been found deportable for committing two or more crimes of moral turpitude. Id.
The Second Circuit has recently held that the relevant date for ascertaining which version of the immigration statutes to apply in a case such as Henriquez's is the date of the guilty plea, not the date of the offense: See St. Cyr, 2000 WL 1234850, at *11. Thus, the law in effect on April 30, 1997, the date Henriquez pled guilty to selling narcotics, is controlling. By April 30, 1997, both AEDPA and IIRIRA had been enacted, and, as deportation proceedings against Henriquez did not commence until well after April 1, 1997, IIRIRA's permanent rules apply to him.
V. This Court Has No Jurisdiction to Consider Relief from Deportation
IIRIRA's permanent rules foreclose the availability of relief from deportation for aliens such as Henriquez who have convictions for aggravated felonies. As set forth above, the permanent rules apply to Henriquez, and therefore this Court has no authority to consider his claims for relief from deportation under former INA §§ 212(c) and 212(h).
The harshness of this result under these circumstances is attributable to the Congressional mandate contained in IIRIRA, not the judgment of this Court.
Conclusion
For the foregoing reasons, the petition is dismissed.
It is so ordered.