Summary
holding that second degree manslaughter is a "crime of violence" for the purposes of deportation
Summary of this case from U.S. v. AponteOpinion
97 Civ. 5687 (TPG)
September 20, 2000
OPINION
This is a habeas corpus petition brought under 28 U.S.C. § 2241. Petitioner challenges a deportation order of the Immigration and Naturalization Service ("INS"). The INS has responded. The court determines that the petition should be denied.
Petitioner was born in Jamaica on November 6, 1975. He is a Jamaican citizen who was admitted to the United States as a lawful permanent resident on March 30, 1983.
In November 1992 petitioner was indicted by a grand jury in Kings County, New York, for second degree murder, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree.
On September 29, 1993 plaintiff pled guilty to two charges: (1) second-degree manslaughter, and (2) second-degree weapon possession. On October 8, 1993 he was sentenced to two concurrent terms of four to twelve years. He did not appeal the conviction or the sentence.
In October 1994 the INS initiated deportation proceedings against petitioner, charging that petitioner was deportable as an alien who had committed a firearms offense. Immigration Judge Alan A. Vomacka (the "IJ") presided over petitioner's proceedings.
A hearing was held on December 20, 1994. In that hearing the IJ explained that petitioner would have an opportunity to obtain counsel and gave him a list of possible sources. When petitioner stated that he wanted to wait to find a lawyer, the IJ adjourned the hearing until March 22, 1995.
In January 1995 the INS added a second deportation charge. This was the charge that petitioner was deportable because of conviction for an aggravated felony. The charge related to the manslaughter conviction. As of that time, the Immigration and Nationality Act ("INA") defined an aggravated felony as a crime of violence for which the sentence was at least five years. 8 U.S.C. § 1101(a)(43)(F) (1994).
At the hearing of March 22, 1995 the IJ noted that the INS had added the second deportation charge. The IJ inquired whether petitioner wanted more time to think about the case and see about hiring an attorney, particularly in view of the added charge. The IJ noted that if petitioner was deported on the basis of an aggravated felony he could not seek re-entry for 20 years, whereas the time was "a few years" in connection with deportation for a firearms conviction. Petitioner said that he would like more time to inquire about an attorney, and the IJ adjourned petitioner's hearing until August 11, 1995. The IJ informed petitioner that if he did not have a lawyer on August 11 the hearing would nevertheless go forward.
A hearing was held on August 11, 1995. The place of the hearing was Downstate Correctional Facility where petitioner was incarcerated on his state conviction. IJ Vomacka again presided. The INS was represented by an attorney. The IJ asked if petitioner was expecting a lawyer or witnesses or anyone else to come on his behalf. Petitioner answered in the negative. The IJ asked if petitioner was ready to answer the charges against him, and petitioner said that he was.
The IJ placed petitioner under oath and the hearing consisted largely of questions by the IJ directed to petitioner. Petitioner's testimony was that he was born on November 6, 1975 and was therefore 19 years of age at the time of the hearing; that his place of birth was Jamaica and he was a citizen of Jamaica; that he had come to the United States as a legal resident in 1983; and that he was convicted of two crimes on September 29, 1993 in Kings County, New York, the first being second-degree possession of a weapon and the second being second-degree manslaughter; that he was given a sentence of four to twelve years in prison; and that he did not appeal.
Despite the fact that petitioner had said that he was a citizen of Jamaica, the IJ asked specifically whether, since coming to the United States, petitioner had ever become a U.S. citizen by taking an oath of citizenship. Petitioner answered that he had not. The IJ then asked petitioner questions to determine whether he may have become a U.S. citizen because of the citizenship of one or both parents. Petitioner stated, in response to questions by the IJ, that his mother and father had been legally married; that they were divorced sometime in the 1970's before petitioner came to this country; and that the parents had come to the U.S. separately. The IJ explained to petitioner that if his parents were legally divorced and his mother had had custody over him, and if she had become a U.S. citizen before petitioner's 18th birthday, this would have made petitioner a citizen. The IJ asked petitioner if he thought that his mother had become a U.S. citizen, and petitioner testified that he thought that she had. Petitioner stated that his mother was living in New York City and that he was in touch with her.
The INS lawyer stated that an INS record indicated that, as of December 2, 1993, petitioner's mother was a permanent resident but not a citizen. The IJ explained to petitioner that this record would indicate that as of late 1993 his mother was still not a citizen and that the date of the record was shortly after petitioner's 18th birthday, all of which would indicate that petitioner had not become of citizen by virtue of his mother becoming a citizen. However, the IJ invited petitioner to communicate with his mother and obtain any information that might be contrary to the INS record.
The IJ then stated that it appeared, subject to any possible correction about petitioner's citizenship status, that petitioner was subject to deportation based at least upon the firearms conviction. The IJ expressed doubt about whether the manslaughter conviction could be the basis for deportation because the minimum sentence on that charge was four years which, in the IJ's view, did not come within the definition of aggravated felony in the immigration law. However, the firearms conviction was still a ground for deportation. The IJ then turned to the subject of whether there was a basis for a waiver of deportation. The IJ stated that a so-called "section 212(c) waiver" could not be obtained where there was a firearms conviction. The IJ advised petitioner that the only way he could obtain relief from deportation was "to go through the process of getting a green card all over again," which is a non- technical way of referring to obtaining an "adjustment of status." The legal significance of this will be described later in this opinion. To start this process an immediate relative, such as a mother or a father, who was a U.S. citizen, would need to file an Immediate Relative Petition as the first step in obtaining an "adjustment of status." The IJ adjourned the matter until October 17, 1995 to permit petitioner to obtain proof, if he could, that his mother or his father has become a U.S. citizen. The IJ warned that if petitioner did not have proof of citizenship of an immediate relative by October 17 there would be no possibility of relief from deportation.
A further hearing was held on October 17, 1995, again at Downstate Correctional Facility. IJ Vomacka presided. The INS was represented by an attorney. The IJ asked petitioner if he was expecting an attorney, and petitioner said that there would be no attorney for him at this hearing. However, petitioner discussed with the IJ the fact that he had written Prisoners Legal Services in Poughkeepsie, New York, and that this organization had sent him a questionnaire, indicating that they would consider taking his case. The IJ declined to delay the matter further, stating that petitioner had had ample time to obtain counsel if one was to be obtained. Moreover, the IJ stated that there was no question about the firearm conviction being a ground for deportation, and that the issue of relief from deportation depended upon whether he had some relative who was a U.S. citizen and who could file the kind of petition for him discussed at the previous hearing. The IJ took the view that petitioner had been afforded ample time to obtain information about the citizenship status of relevant family members, and that the matter should proceed.
The IJ asked whether petitioner's mother was then a U.S. citizen, and petitioner said that he did not know. The IJ pointed out that petitioner had had since December 1994 to find out the facts about his mother's citizenship, and asked petitioner to explain why he had been unable to obtain the information during this 10 months. Petitioner stated that he did not want to explain this, and stated that he did not know anything about his mother's citizenship. The IJ asked the INS attorney if he had further information. The attorney stated that the INS had no record of petitioner's mother being anything but a permanent resident.
The IJ concluded that there was no relief available against the fact that petitioner was subject to deportation on the firearms conviction. The IJ rendered an oral opinion to this effect on October 17, and ordered deportation based on the firearms conviction.
In the petition, petitioner asserts that the IJ "excluded my family from testifying," and that the record "was altered and silent as to this issue." It is not clear what hearing or hearings petitioner is referring to. The two hearings of substance were those of August 11, 1995 and October 17, 1995. At the August 11 hearing the IJ asked petitioner if he was expecting a lawyer to be present that day and if he was expecting any witness or anybody to come in his support. Petitioner answered in the negative. At the hearing of October 17 the IJ advised petitioner that he had received information that petitioner's sister was at the INS office in New York asking for information about petitioner's hearing. Petitioner stated that his mother and his brother were supposed to be at the hearing. However, petitioner made no mention of any family members actually wishing to attend the hearing. As already described, there was extensive inquiry at both hearings by the IJ as to whether there were any family members who might be in a position to help petitioner either by showing that he was a citizen or by taking steps to help him obtain relief from deportation, and petitioner was not able to present any useful information.
The INS appealed to the Board of Immigration Appeal ("BIA"). Petitioner did not formally appeal but presented certain points informally to the BIA, which points were accepted by the BIA for review. In an opinion dated April 17, 1996 the BIA affirmed that petitioner was deportable for the firearms offense. The BIA found that petitioner was also deportable for the manslaughter conviction, reversing the IJ on that point. The BIA held that petitioner's sentence of four to twelve years should be considered as being a sentence of twelve years for the purpose of applying the INA definition of aggravated felony as involving a sentence of "at least five years." The BIA affirmed the IJ's finding that petitioner was ineligible for relief from deportation. The BIA rejected petitioner's claim that he had been denied due process because of the lack of legal counsel, his family's absence from the hearing, and an inadequate record of the proceedings.
The Issues on Habeas Corpus
Petitioner does not deny that he was convicted on the firearms charge and that this is a statutory ground for deporting him, but objects to the ruling by the BIA that he was deportable because of the manslaughter conviction.
Petitioner complains that the IJ stated that he could not seek to re- enter the United States for 20 years after deportation, whereas the proper period, according to petitioner, is three years.
Petitioner alleges a lack of due process in that the IJ failed to give him sufficient opportunity to obtain counsel, and his family was barred from attending a hearing. There is also the claim that the record of the proceedings was inaccurate and incomplete.
Finally, petitioner alleges hardship in that he has lived in the United States since the time he was a young boy, that his family is in the United States, and that he has no place to go in Jamaica if he is deported.
Although the petition does not expressly articulate a claim that there was error by the INS in connection with the issue of relief from deportation, the court will construe the petition as seeking review on this point.
Discussion
District courts have jurisdiction to decide habeas corpus petitions brought under 28 U.S.C. § 2241 to challenge INS determinations. Henderson v. INS, 157 F.3d 106 (2d Cir. 1998). The usual respondent in such a habeas corpus petition would be the petitioner's custodian, not the administrative law judge whose decision has been reviewed by the BIA. Id. at 122-28, 130. However, this possible procedural flaw has not been raised by the INS in the present case. Accordingly, the court will examine the petition on the merits.
Petitioner's conviction for second-degree weapon possession means that he is deportable as an alien who has been convicted of a firearms offense. The applicable statute is the former section 241(a)(2)(C) of the INA, 8 U.S.C. § 1251(a)(2)(C) (1994). The petition presents no argument to the contrary.
Petitioner does object to the second ground of deportation — i.e., conviction for second-degree manslaughter. The law is as follows. Conviction of an aggravated felony was a ground for deportation under the former § 241(a)(2)(A)(iii) of the INA. 8 U.S.C. § 1251(a)(2)(A)(iii) (1994). The definition of "aggravated felony" as of the time of petitioner's conviction in 1993 was "a crime of violence . . . for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years." 8 U.S.C. § 1101 (a)(43)(F) (1994). Manslaughter is a crime of violence under the statute. U.S. v. Campbell, 94 F.3d 125, 128 (4th Cir. 1996). As to the sentence issue, the BIA has long construed an indeterminate sentence as a sentence for the maximum term. See Interim Decision in Re S-S, 1997 WL 258946 (BIA May 6, 1997). The Tenth Circuit has held that an indeterminate sentence of three to eight years was more than five years in applying the deportation law. Nguyen v. INS, 53 F.3d 310, 311 (10th Cir. 1995). Under New York law, an indeterminate sentence is regarded as a sentence for the maximum term. People v. Morales, 386 N.Y.S.2d 737, 739 (Sup. Ct. 1976); see also U.S. ex rel. Paladino v. Commissioner of Immigration, 43 F.2d 821, 821-22 (2d Cir. 1930).
Thus, the BIA was correct in concluding that petitioner's manslaughter sentence of four to twelve years was a sentence of twelve years for the sake of applying the definition in the INA. Petitioner is deportable because of conviction of an aggravated felony.
On the question of possible relief from deportation, the IJ was of great assistance to petitioner in explaining the law to him and attempting to give petitioner an opportunity to arrive at some means of obtaining relief.
Two possible avenues were discussed. One was the so-called "section 212(c) waiver." This refers to the former § 212(c) of the INA, codified as 8 U.S.C. § 1182(c) (1994), which was repealed effective September 30, 1996. The administrative proceedings against petitioner occurred prior to repeal of § 212(c). In fact, the proceedings before the IJ and the BIA all occurred before an amendment to § 212(c) which became effective April 24, 1996. The Government takes the position that the form of § 212(c) which is relevant to the present case is that which was in effect prior to April 24, 1996, citing Henderson v. INS, 157 F.3d 106, 128-30 (2d Cir. 1993).
To the extent that § 212(c) was replaced by provisions in other sections of the INA, such provisions are not relevant to the issues now before the court.
With regard to the issue of a possible § 212(c) waiver, the IJ discussed this in terms of whether there could be such a waiver where deportation was based upon a firearms conviction, because that was the only ground for deportation which he found valid. The IJ ruled that a § 212(c) waiver was not available where there was a firearms conviction, and the BIA agreed. This ruling is squarely in accord with the Second Circuit decision in Cato v. INS, 84 F.3d 597 (2d Cir. 1996). Later in this opinion the court will discuss the issue of possible § 212(c) waiver with respect to the manslaughter conviction.
In the administrative proceedings there was considerable discussion of the possibility that petitioner might avoid deportation through an "adjustment of status" under section 245 of the INA, 8 U.S.C. § 1255(a). This provision was in effect at the time of the hearings and is still in effect. Under § 245, the Attorney General has the discretion to adjust the status of an alien to that of a lawful permanent resident "if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." 8 U.S.C. § 1255(a). It is not immediately apparent why a lawful permanent resident convicted of a firearms offense would meet the criteria of (2), but in the INS proceedings it was apparently assumed that this might be so. The key consideration dealt with in those proceedings was whether petitioner would have a visa "immediately available to him" under subsection (3).
An alien may be able to obtain an immediate visa if he has a parent, child or spouse who is an American citizen and who files an application for him. 8 U.S.C. § 1151(b)(2)(A)(i). This is called an Immediate Relative Petition. The IJ made extensive inquires on this subject. It was clear that petitioner did not have a child. The IJ asked petitioner if he had ever been married, to which petitioner answered yes. However, later the IJ stated that, according to his notes, petitioner was unmarried and petitioner did not correct the IJ. Most importantly, petitioner states in his habeas corpus petition that he has "a fiancee who is residing in Buffalo with four kids." There is no evidence in the record indicating that petitioner is or was married to an American citizen.
The IJ gave petitioner the opportunity to present evidence that a parent had become an American citizen and would thus be in a position to sign an Immediate Relative Petition. Petitioner failed to do so. Thus, there was no showing of any ground for pursuing the "adjustment of status" remedy.
As described earlier, one of the points made by petitioner to this court is a complaint that the IJ stated that he could not seek to re-enter the United States for 20 years after deportation, whereas the proper period, according to petitioner, is 3 years. Although it can certainly be argued that a cognizable claim is not articulated in a satisfactory manner or properly preserved for review by this court, nevertheless it is clear that this pro se petitioner is trying to raise a point which he regards as substantial.
The point petitioner alludes to has to do with provisions in the INA dealing with the ability of deported persons to apply for re-admission, and the restrictions on such applications. At the time of petitioner's administrative proceedings, the INA provided, with certain qualifications, that a deported alien who sought admission within 5 years after deportation would be excluded, except that the time was 20 years for a deported alien who had been convicted of an aggravated felony. 8 U.S.C. § 1182 (a)(6)(B) (1994). Under an amendment which became effective September 30, 1996 the time period of the restriction generally applicable to deported aliens was changed from 5 years to 10 years. For an alien deported because of conviction for an aggravated felony, the statute provided for a permanent restriction on re-admission. 8 U.S.C. § 1182(a)(9)(A)(ii). All these restrictions were and are subject to certain qualifications.
It was not incorrect for the IJ to state to petitioner that if he was deported on the basis of an aggravated felony he could not seek re-entry for 20 years. That statement was in accord with the law as it stood at the time of the administrative proceedings. The current law is even stricter.
The court has considered the question of whether there was at the time of the administrative proceedings, or now is, some means of obtaining a withdrawal or waiver of conviction of an aggravated felony as a ground for deportation so as to eliminate the severe restriction on applying for re- admission. As of the time of the administrative proceedings, an application for a § 212(c) waiver could apparently be made where the ground for deportation was an aggravated felony conviction, except where the alien had served "a term of imprisonment of at least 5 years." 8 U.S.C. § 1182(c) (1994). As of the time of the administrative proceedings, petitioner had not served five years. Under these circumstances this court has considered whether there was error in the administrative proceedings in not allowing petitioner to apply for a § 212(c) waiver as to the aggravated felony ground of deportation. However, § 212(c) was not a device for removing a ground or cause of deportation. The discretion of the Attorney General under § 212(c) was to admit aliens who qualified — i.e., to waive deportation. See Matter of Roman, 19 I. N. Dec. 855, 859, 1988 WL 235469 (BIA 1988). Petitioner was required to be deported on the ground of the firearms conviction, and no waiver of deportation was available as to such deportation. Any application under § 212(c) with respect to the aggravated felony conviction could not, in practical fact, have been for a waiver of deportation. Thus it was not the kind of application that could be made or granted under § 212(c).
As to the due process issue, petitioner's main argument is that he was deprived of counsel. The court disagrees. There is no absolute right to counsel in deportation proceedings, which are civil rather than criminal in nature. The law requires only that the alien be told of his right to retain counsel, and that if he chooses to find retained counsel the immigration courts permit him reasonable opportunity to do so. 8 U.S.C. § 1362. In this case the IJ complied with the law, and petitioner was given generous extensions of time in which to find counsel. There is no due process violation as to the counsel issue.
Petitioner also argues that the IJ excluded his family from testifying, and that the record of the proceedings was incomplete, particularly in failing to show such exclusion by the IJ. However, as described earlier in this opinion, the IJ was zealous in attempting to obtain information about family members who might be in a position to help petitioner. As far as the issue of family members attending any of the hearings, this subject is in fact covered by the transcript of the two hearings of substance, those of August 11 and October 17, 1995, and the record shows that plaintiff essentially stated that family members, although perhaps expected by him, had simply not come. There was no due process violation regarding family members or the record of the proceedings.
As to the claim of hardship, the court agrees with the INS that the hardship of which petitioner speaks is not grounds to disturb the BIA's decisions.
Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus is denied.
SO ORDERED.