Opinion
No. 00 Civ. 6518 (RCC) (KNF)
November 21, 2002
REPORT AND RECOMMENDATION
I. INTRODUCTION
Before the Court is Luis Ney Heredia-Matos' ("Heredia-Matos") pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2241. Petitioner challenges a final order of removal from the United States issued by the Immigration and Naturalization Service ("INS").
Petitioner contends that he is entitled to relief because: (1) he is eligible for a discretionary waiver of deportation pursuant to the Immigration and Nationality Act ("INA") § 212(c) ("§ 212(c)"), 8 U.S.C. § 1182(c) (repealed by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") § 304[b]); (2) the INS took him into custody improperly for a crime for which his sentence had been served; and (3) the INS violated certain provisions of federal immigration law by failing to initiate removal proceedings immediately upon petitioner's release from New York State custody in 1990, that is, as soon as he had completed the sentence imposed on his conviction for the offense which served as the basis for his order of removal. Respondent opposes petitioner's application for a writ of habeas corpus.
For the reasons set forth below, I recommend that the petition be denied.
II. BACKGROUND
Heredia-Matos is a native and citizen of the Dominican Republic. He was admitted to the United States on February 24, 1979, as a lawful permanent resident, when he was 25 years old. In July 1983, following a jury trial in New York State Supreme Court, New York County, Heredia-Matos was found guilty of third-degree criminal sale of a controlled substance see N.Y. Penal Law § 220.39, and third-degree criminal possession of a controlled substance with intent to sell it, see N.Y. Penal Law § 220.16. These crimes are aggravated felonies pursuant to 8 U.S.C. § 1101(a)(43). See, e.g., Herrera v. Giambruno, No. 01 Civ. 8561, 2002 WL 31357844, at *2 (S.D.N.Y. Oct. 18, 2002). Heredia-Matos was also found guilty of second-degree criminal possession of a weapon. See N.Y. Penal Law § 265.03. On July 14, 1983, the trial court sentenced petitioner to concurrent terms of two to six years' imprisonment for the controlled substance convictions and eighteen to fifty-four months' imprisonment for the weapon possession conviction.
The statutory definition of "aggravated felony" incorporates other statutory definitions. See United States v. Pornes-Garcia, 171 F.3d 142, 145 (2d Cir. 1999). 8 U.S.C. § 1101(a)(43) defines "aggravated felony" as, inter alia "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). In addition, under § 1101(a)(43), the term, "aggravated felony," "applies to an offense described in [§ 1101(a)(43)] whether in violation of Federal or State law." In 18 U.S.C. § 924(c)(2), a "drug trafficking crime" is defined as including "any felony punishable under the Controlled Substances Act." The Controlled Substances Act defines "felony" as "any Federal or State offense classified by applicable Federal or State law as a felony." 21 U.S.C. § 802(13); see also Pornes-Garcia, 171 F.3d at 145.
On January 22, 1988, petitioner entered a plea of guilty in New York State Supreme Court, New York County, to fifth-degree attempted criminal sale of a controlled substance, see N.Y. Penal Law § 220.31, which is an aggravated felony, see 8 U.S.C. § 1101(a)(43). On February 18, 1988, he was sentenced to eighteen months to three years' imprisonment.
In October 1994, petitioner entered a plea of guilty to criminal possession of a controlled substance in the seventh degree, see N.Y. Penal Law 220.03, and was sentenced to ten days' incarceration. In August 1998, petitioner entered a plea of guilty to criminal possession of a controlled substance in the seventh degree, see id., and was sentenced to time served.
On January 27, 1999, petitioner entered a plea of guilty in New York State Supreme Court, New York County, to third-degree criminal sale of a controlled substance see N.Y. Penal Law § 220.39, which is an aggravated felony, see 8 U.S.C. § 1101(a)(43), and was sentenced to five to ten years' imprisonment for this offense.
On March 20, 1999, Heredia-Matos was served a Notice to Appear in Removal Proceedings. The Notice to Appear was dated September 5, 1997. The Removal Proceeding was initiated pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (alien convicted of a controlled substance offense other than a single offense involving possession for one's own use of 30 grams or less of marijuana) and INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (alien convicted of an aggravated felony).
A hearing was commenced on August 11, 1999, and adjourned to and continued on October 13 and November 30, 1999. At each proceeding an immigration judge ("IJ") adjourned the matter to enable Heredia-Matos to obtain counsel. On February 28, 2000, Heredia-Matos, appearing with an accredited immigration representative, urged the IJ to grant him a discretionary waiver of deportation pursuant to § 212(c). Petitioner contended that he was eligible for a § 212(c) waiver, even though the provision had been repealed, because the criminal conduct that served as a predicate for his order of removal predated the IIRIRA effective date, April 1, 1997.
At the conclusion of the hearing, the IJ found that petitioner was removable as charged. Specifically, the IJ found that petitioner's 1988 conviction for fifth-degree attempted criminal sale of a controlled substance rendered him an aggravated felon and that, as such, he was entitled neither to a discretionary waiver of deportation pursuant to § 212(c), nor to the relief of cancellation of removal under INA § 240A ("§ 240A"), 8 U.S.C. § 1229b. Accordingly, the IJ ordered Heredia-Matos removed to the Dominican Republic.
Section 240A of the INA, which replaced § 212(c), provides, in pertinent part:
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 an aggravated felony.8 U.S.C. § 1229b(a)(3).
Thereafter, Heredia-Matos filed an appeal with the Board of Immigration Appeals ("BIA"). On July 12, 2000, the BIA, in a per curiam opinion, dismissed Heredia-Matos's appeal. The BIA's decision rendered Heredia-Matos's removal order final. See Lleo-Fernandez v. INS, 989 F. Supp. 518, 520 n. 2 (S.D.N.Y. 1998).
On August 30, 2000, petitioner filed the instant habeas corpus petition. On September 25, 2000, in order to preserve the court's jurisdiction to reach the merits of this case, petitioner's removal was stayed. See 28 U.S.C. § 1651. In addition, pursuant to respondent's request, consideration of Heredia-Matos' habeas corpus petition was deferred pending action by the Second Circuit Court of Appeals on unrelated litigation concerning the pivotal issue in this case. Petitioner's claims are addressed below.
III. DISCUSSION
Eligibility for § 212(c) Waiver
Prior to the enactment of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, certain aliens were entitled to apply for a waiver of deportation pursuant to § 212(c). Section 212(c), codified at 8 U.S.C. § 1182(c), stated:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General. . . .8 U.S.C. § 1182(c) (repealed) (1996) (quoted in INS v. St. Cyr, 533 U.S. 289, 295, 121 S.Ct. 2271, 2276).
In 1990, Congress amended § 212(c) to exclude from eligibility for a waiver any alien who had been convicted of one or more aggravated felonies and had served a term of imprisonment of at least five years.See Immigration Act of 1990, Pub.L. No. 101-649, § 511, 104 Stat. 5052 (amending 8 U.S.C. § 1182[c]); St. Cyr, 533 U.S. at 297, 121 S.Ct. at 2277.
On April 24, 1996, Congress limited further the availability of § 212(c) relief through the enactment of § 440(d) of AEDPA, which excluded from § 212(c) relief all aliens convicted of certain enumerated offenses regardless of the term of imprisonment served by the alien as a result of the conviction. See AEDPA § 440(d), 8 U.S.C. § 1227 (precluding from discretionary relief aliens convicted of committing, inter alia an aggravated felony, a drug-related crime, or two or more offenses involving moral turpitude).
On September 30, 1996, Congress enacted the IIRIRA, which repealed § 212(c) altogether, and eliminated the proceedings previously known as "deportation" and "exclusion." Section 212(c) was replaced with a different form of discretionary relief from deportation known as cancellation of removal. See IIRIRA § 304(b), 8 U.S.C. § 1229a. Cancellation of removal was made available only to aliens who inter alia, had not been convicted of an aggravated felony. See § 240A, 8 U.S.C. § 1229b(a).
In June 2001, the United States Supreme Court addressed the question, whether provisions of AEDPA and IIRIRA repealing discretionary relief from deportation applied retroactively to an alien whose conviction was obtained through a plea agreement. See St. Cyr, 533 U.S. at 320, 121 S.Ct. at 2290. The Court held that "§ 212(c) relief remains available for aliens whose 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." Id. at 326,2293. In reaching its conclusion, the Court reasoned that:
[This] presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to confirm their conduct accordingly; settled expectations should not be lightly disrupted.Id. at 316, 2288 (citation omitted) (internal quotation marks omitted).
Heredia-Matos claims that he is eligible for relief pursuant to § 212(c) because the conviction which served as the predicate for his order of removal, namely, his 1988 conviction for fifth-degree attempted criminal sale of a controlled substance, was obtained through a plea agreement. Therefore, petitioner contends, despite IIRIRA's elimination of § 212(c), the relief once provided under that section remains available to him because he was eligible for § 212(c) relief, under the law, at the time of his plea. Consequently, petitioner maintains, the BIA erred when it concluded that he was ineligible for a discretionary waiver of deportation pursuant to § 212(c). Accordingly, petitioner argues that to bar him from applying for a waiver under that provision would result in an impermissible retroactive application of AEDPA and IIRIRA.
Petitioner asserts correctly that the BIA's determination that he was ineligible for § 212(c) relief, based on his 1988 controlled substance conviction, was erroneous. Petitioner's 1988 conviction was obtained through a guilty plea. Therefore, the Supreme Court's ruling inSt. Cyr, making § 212(c) relief available to aliens who pled guilty prior to the enactments of AEDPA and IIRIRA, applies in this case. Ordinarily, under the circumstances, it would be appropriate for the court to grant petitioner's habeas corpus petition to the extent of remanding this case to the BIA for further proceedings, consistent with federal law, concerning petitioner's request for § 212(c) relief. However, since the denial of petitioner's application for discretionary relief from deportation is required by statute on other grounds, a remand to the BIA would be futile in this case. See N.L.R.B. v. American Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982) (stating that reversal and remand are required only where there is a significant chance that, but for the error, the administrative agency might have reached a different result); see also N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6, 89 S.Ct. 1426, 1430 n. 6 (1969) ("To remand would be an idle and useless formality . . . [where] [t]here is not the slightest uncertainty as to the outcome of a proceeding before [an administrative agency]. . . ."); Foti v. INS, 332 F.2d 424, 424 (2d Cir. 1964) ("Remand of this case to the Attorney General would be a pointless formality since the Attorney General is required by the statute to deny petitioner's application [for suspension of deportation].").
In 1999, Heredia-Matos was convicted of third-degree criminal sale of a controlled substance, an aggravated felony. Consequently, under AEDPA and IIRIRA, which were enacted in 1996, petitioner is subject to removal by virtue of his conviction for this drug-related crime; he is ineligible for § 212(c) relief, and the Attorney General is barred from granting him a discretionary waiver of deportation.
Moreover, in 1983, petitioner was convicted of third-degree criminal sale and third degree criminal possession of a controlled substance, both of which are aggravated felonies. These convictions were obtained, not through a guilty plea, but through a jury verdict. Therefore, the Supreme Court's ruling in St. Cyr, making § 212(c) relief available to aliens who pled guilty pnor to the enactments of AEDPA and IIRIRA, does not apply to those convictions. Furthermore, the Second Circuit has ruled that weapons offenders are ineligible for the privilege of discretionary waiver from deportation. See Cato v. INS, 84 F.3d 597, 601 (2d Cir. 1996). Thus, petitioner's 1983 conviction for possession of a weapon also made him ineligible for § 212(c) relief.
Consequently, although the BIA erred when it concluded that petitioner was ineligible for § 212(c) relief based on his 1988 controlled substance conviction, a remand of this case to the BIA for further proceedings consistent with federal law would be an exercise in futility. Accordingly, petitioner's claim that he is eligible for § 212(c) relief should be denied.
Eligibility for Other Forms of Relief
Heredia-Matos contends that the INS "improperly retook [him] into custody for a crime [his 1988 controlled substance conviction] for which he [had] served his sentence and had been released from incarceration." According to petitioner, since his crime was "already punishable under state statutes [it] required no additional retroactive penalty of exclusion from the country." This aspect of petitioner's habeas corpus application is frivolous.
A review of the record in this case indicates that petitioner was never taken into INS custody. As petitioner concedes, after he had served the sentence imposed on his 1988 conviction, he remained at liberty for a period of more than five years. Petitioner's removal proceeding was initiated in March 1999. At the time his removal order became final in July 2000, petitioner was in New York State custody, serving the sentence imposed on his 1999 conviction for third-degree criminal sale of a controlled substance. Therefore, petitioner's claim that the INS detained him improperly in connection with his 1988 controlled substance conviction is without merit.
Petitioner also contends that the INS violated federal immigration law by failing to initiate his removal proceedings immediately upon petitioner's release from New York State custody in 1990. Petitioner, citing 8 U.S.C. § 1252(i), argues that since the INS "failed to use expedited removal proceedings against [him]," he is now entitled to discretionary relief.
When originally enacted in 1986, 8 U.S.C. § 1252(i) stated:
In the case of an alien who is convicted of an offense which makes the alien subject to deportation, the Attorney General shall begin any deportation proceeding as expeditiously as possible after the date of conviction.
INA, as amended by the Immigration Reform and Control Act of 1986, Pub.L. No. 99-603, 100 Stat. 3359 (1986); see also Loaiza v. INS, No. 98 Civ. 1112, 1998 WL 863126, at *2 (E.D.N.Y. Dec. 8, 1998). Section 436(b)(1) of AEDPA, enacted in 1996, added the following sentence to § 1252(i):
Nothing in this subsection shall be construed to create any substantive or procedural right or benefit that it is legally enforceable by any party against the United States or its agencies or officers or any other person.See Loaiza, 1998 WL 863126, at *2; Tapia-Garcia v. United States, 53 F. Supp.2d 370, 385 (1999). With the enactment of IIRIRA in 1996, this provision was moved to 8 U.S.C. § 1229(d)(1) and (2). The language remained the same in the new section. See Tapia-Garcia, 53 F. Supp.2d at 385 n. 6.
In 1994, the INA was amended by the Immigration and Nationality Technical Corrections Act ("INTCA"), Pub.L. No. 103-416, 108 Stat. 4305. See Loaiza, 1998 WL 863126, at *2. The 1994 INTCA amendments provided:
No Amendment made by this Action and nothing in Section 242(i) of the INA ( 8 U.S.C. § 1252[i]) shall be construed to create any substantive right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
Under 8 U.S.C. § 1229(d)(1) and (2) — formerly 8 U.S.C. § 1252(i) — an alien has no standing to assert a claim challenging the Attorney General's actions with respect to the initiation of removal proceedings. See Tapia-Garcia, 53 F. Supp.2d at 385 (citingCampos v. INS, 62 F.3d 311, 314 [9th Cir. 1995]; Hernandez-Avalos v. INS, 50 F.3d 842, 844 [10th Cir.], cert. denied, 516 U.S. 826, 116 S.Ct. 92). Indeed, "Congress' language in the 1994 and 1996 amendments makes clear that parties such as [the petitioner] never had a private right to have a court order the Attorney General to proceed with deportation hearings against them." Loaiza, 1998 WL 863126, at *2. Therefore, since Heredia-Matos has no private right of action with respect to his claim that he is entitled to discretionary relief based on the INS' failure to initiate removal proceedings against him expeditiously, the claim should be denied.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that petitioner's application for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl Street, Room 1950, New York, N.Y. 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, NY, 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985);IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).