Opinion
CIVIL ACTION NO. 03-10721-DPW
June 17, 2003
MEMORANDUM AND ORDER
The petitioner in this habeas corpus proceeding under 28 U.S.C. § 2241 is a permanent resident alien, who was convicted in 1984 of conspiracy to import heroin into the United States. In extended deportation hearings commenced about the time of the completion of his prison sentence in 1989, the government has declined to waive petitioner's deportation under § 212(c) of a previous version of the Immigration and Naturalization Act. In its ultimate determination, the April 25, 2003 per curiam order denying petitioner's motion for reconsideration of its February 5, 2003 decision dismissing his challenge to deportation, the Bureau of Immigration Appeals determined that § 212(c) relief was not available to the petitioner on two categorical grounds: first, that the restriction of § 212 relief by the Antiterrorism and Effective Death Penalty Act of 1996 was applicable to him because his conviction came after a jury trial, and second, because he had been incarcerated for over five years and thus was ineligible for relief as a result of the Immigration and Nationality Act of 1990.
In moving to dismiss the instant petition, the government abandons the second ground for denial of waiver but presses the first. Exercising the habeas corpus power the District Courts retain to address questions of law raised by an alien's claims of statutory or constitutional violation, see generally Carranza v. INS, 277 F.3d 65, 71 (1st Cir. 2002), I find the government must address petitioner's § 212(c) waiver request on the merits. Consequently, I will allow the writ and stay his deportation until petitioner has received the full merits consideration to which he is entitled.
The short and sufficient answer to the government's motion was provided by the United States Court of Appeals for the First Circuit in Goncalves v. Reno, 144 F.3d 110, 133 (1st Cir. 1998), cert. denied, 526 U.S. 1004 (1999), where the court held that § 212(c) relief remained available, despite the subsequent enactment of AEDPA, to those aliens in deportation proceedings who sought § 212(c) relief before AEDPA was enacted. That is a class to which petitioner, who sought § 212(c) relief in 1989, belongs.
I recognize that in 1991 Immigration Judge Bagley denied § 212(c) relief on the merits; but that dozen-year-old determination has never been the subject of merits review. Rather, the Board of Immigration Appeals has relied upon alternative categorical grounds — derived from legislative modifications to the Immigration and Naturalization Act post-dating initiation of deportation proceedings against petitioner and his application for waiver — to avoid for over a decade the exercise of the discretion Goncalves makes clear remains with the government in addressing that application.
Given the extended period of time since the order of deportation was originally entered in this case and the potential that additional evidence concerning the petitioner's life during the past dozen years would have a material bearing upon the informed exercise of discretion which evaluation of § 212(c) relief on the merits requires, I hereby direct de novo determination on the merits commencing with decisionmaking by an immigration law judge as to whether petitioner is now entitled to a discretionary waiver of deportability under § 212(c). Pending the completion of this de novo § 212(c) waiver proceeding, the order of deportation shall be stayed.
I decline to act on the suggestion of claims of inadequate medical care adumbrated in the petitioner's papers. Those claims must be pursued in litigation through an action separate from the instant habeas corpus petition. See generally Preiser v. Rodriguez, 411 U.S. 475, 484-99 (1973); Kamara v. Farquharson, 2 F. Supp.2d 81, 88-89 (D.Mass. 1998).