Opinion
No. 00 Civ. 8804 (GEL)
February 14, 2003
OPINION AND ORDER
Petitioner is a permanent resident of the United States who, on January 22, 1993, was convicted upon his plea of guilty of first-degree manslaughter in the Supreme Court of the State of New York. He is currently serving a prison term of nine to eighteen years in a New York State corrections facility.
On February 5, 1998, the Immigration and Naturalization Service ("INS") commenced removal proceedings against Petitioner pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Following an administrative hearing on September 1, 1998, an Immigration Judge entered an order from the bench that directed the INS to remove Petitioner from the United States to Barbados, his nation of origin, following the completion of his prison term. The Immigration Judge also held, among other things, that as a consequence of § 304 of the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No. 104-208. 110 Stat. 3009-546 et seq. (1996) ("IIRIRA"), and § 440(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-32. 110 Stat. 1214 et seq. (1996), petitioner was ineligible to seek a discretionary waiver of deportation from the Attorney General of the United States or his delegates (including immigration judges) that had previously been available pursuant to § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c), repealed by the aforementioned legislation. The Board of Immigration Appeals ("BIA") affirmed the removal order on May 7, 1999.
That provision authorizes the INS to commence removal proceedings against any alien who has been convicted of an aggravated felony "at any time after admission" to the United States (emphasis added).
The order does not specify a date for the deportation to occur, but the Government has suggested to this Court in a January 12, 2001, letter that Petitioner will be permitted to remain in the United States until the completion of his prison term.
On November 17, 2000, petitioner, proceeding pro se, petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He alleged. first, that as a consequence of St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000), aff'd 533 U.S. 289 (2001), the INS is precluded from applying § 304 of IIRIRA and § 440(d) of AEDPA retroactively to an alien whose aggravated felony conviction was entered prior to the effective date of those statutes. Second, petitioner alleges that the BIA's denial of relief under 8 U.S.C. § 212(h) violates the Equal Protection component of the Fifth Amendment, insofar as it bars legal permanent residents from obtaining a form of relief from deportation that is available to other legal aliens with identical criminal records.
On January 18, 2001, this Court ordered that adjudication of petitioner's claims be deferred pending the issuance of mandates by the Supreme Court in St. Cyr and Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir. 2000), since those decisions could have, among other things, divested this Court of the authority to review removal orders such as the one that Petitioner is subject to. This Court further ordered that any deportation of petitioner be stayed until those mandates have issued and until this Court has adjudicated petitioner's claims.
On June 25, 2001. the Supreme Court decided St. Cyr and Calcano-Martinez. St. Cyr v. INS, 533 U.S. 289 (2001); Calcano-Martinez v. INS., 533 U.S. 348 (2001). In Calcano-Martinez, the Court held that criminal aliens like petitioner, who have been convicted of aggravated felonies are entitled to limited judicial review of their removal orders by habeas corpus petitions in district court. 533 U.S. at 351-52. This Court's jurisdiction thus affirmed, counsel for the Government, by letter dated July 9, 2001, filed a response to the petition, urging the Court to dismiss petitioner's retroactivity claim, but asking that the Court further defer final adjudication of petitioner's equal protection claim pending the Second Circuit's decision of a similar equal protection challenge to § 212(h) of the INA in Lake v. Reno. By letter dated October 3, 2002, counsel for the Government informed the court that the equal protection issue had been addressed by the Second Circuit in another case, Jankowski-Burczyk v. INS, 291 F.3d 172 (2d Cir. 2002), and argued that the decision forecloses petitioner's equal protection claim. On November 14, 2002, this Court sought further briefing on whether restrictions placed by Congress on § 212(h) relief that make petitioner now ineligible for it, also enacted as part of IIRIRA in 1996, could be retroactively applied to petitioner in light of St. Cyr. Briefing on this issue was completed on February 3, 2003.
The Second Circuit had failed to reach the equal protection claim the first time it decided Lake v. Reno, reversing the BIA determination on other grounds. 226 F.3d 141, 143 (2d Cir. 2000). However, the Supreme Court vacated Lake v. Reno in June, 2001. Ashcroft v. Lake, 533 U.S. 913 (2001). The Second Circuit then considered and rejected the identical equal protection challenge in Jankowski-Burczyk v. INS. 291 F.3d 172, 178 (2d Cir. 2002). Based on Jankowski-Burczyk, the Second Circuit issued a summary order on August 1, 2002 dismissing the equal protection claim inLake. Ashcroft v. Lake, 43 Fed. Appx. 417 (2002).
This Court finds that the government is correct with respect to both the retroactivity claims and the equal protection claim, and therefore dismisses the petition.
DISCUSSION
A. Retroactive Application of the Repeal of 8 U.S.C. § 1182(c)
Until its repeal in 1996. § 212(c) of the INA permitted a legal permanent resident ("LPR") who had been lawfully present in the United States for at least seven years to apply to the Attorney General for a discretionary waiver of certain grounds for deportation. including those related to criminal convictions. Petitioner claims that any interpretation of Congresss 1996 legislation repealing § 212(c) that retroactively deprives him of eligibility for the waiver that was available to him when he pled guilty in 1993 violates the requirement, enunciated in Landgraf v. USI Film Products, 511 U.S. 244, 272-73 (1994), that such retroactive application of a statute is only permissible when Congress has unambiguously communicated an intent to do so in the language of the statute. Had § 212(c) been applicable to petitioner, he would have a legitimate claim, since the Supreme Court recently confirmed that the repealing legislation evinces no such clear Congressional intent. St. Cyr, 533 U.S. at 326. However, even if § 212(c) were still in effect, petitioner would not be eligible for relief, since its final sentence excluded any 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 5 years." 8 U.S.C. § 1182(c) (1994). Petitioner is serving a term of nine to eighteen years. He first appeared before the immigration judge in his deportation proceeding in May, 1998, more than five years after his guilty plea on January 22, 1993. Therefore, he could not benefit from § 212(c) in any event. See DiSanto v. INS, No. 00 Civ. 4239 (GEL), 2002 WL 10448 (S.D.N.Y. Jan. 3, 2002).
B. Equal Protection
Section 212(h) of the I.N.A. permits the Attorney General to waive grounds for deportation when, inter alia, the alien
is the spouse. parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.8 U.S.C. § 1182(h). In 1996, Congress added a provision making § 212(h) discretionary relief unavailable to LPRs who, since becoming LPRs, have been convicted of an aggravated felony. Id.; IIRIRA § 348.
Petitioner claims, first, that Congress's exclusion of LPRs from § 212(h) relief is a distinction without any rational basis and therefore violates the Fifth Amendment's guarantee of equal protection of the laws. However, in Jankowski-Burczyk, 291 F.3d at 178-79, the Second Circuit held that the "difference of treatment between § 212(h) of the I.N.A. is rationally related to a legitimate government purpose," positing four possible rationales for the distinction. Thus petitioner's equal protection claim must be denied.
Upon this court's suggestion in its December 3, 2002, order, petitioner also raises a retroactivity objection to the application to him of the 1996 restriction on § 212(h) eligibility, claiming that, in contrast to § 212(c) relief already discussed, he would otherwise have been eligible to apply. However, as pointed out by the government in its supplemental memorandum addressing this claim, Congress in this instance (unlike its repeal of § 212(c)) clearly communicated its intent that the law be applied retroactively. The enacting legislation specified that the amendment "shall be effective on the date of enactment of this Act and shall apply in the case of any alien who is in exclusion or deportation proceedings as of such date," IIRIRA § 348(b). Petitioners deportation proceeding was commenced on May 12, 1998, after IIRIRA's enactment date of September 30, 1996. Indeed, the Supreme Court in St. Cyr pointed to this very language as an example of an IIRIRA provision that Congress made "expressly applicable to prior convictions."St. Cyr, 533 U.S. at 320 n. 43. Thus the application of Congress's withdrawal of § 212(h) relief to aliens such as the petitioner here does not violate the standard for impermissible retroactivity set forth in Landgraf.
Finally, the Court takes note of the letters received from petitioner's wife and mother-in-law, imploring the Court's mercy and even seeking his release from custody. These letters, while moving testaments to the love of petitioner's family, misunderstand the nature of the present proceeding and the nature of the Court's authority. The Court has no power either to commute petitioner's sentence or to reverse the order of deportation, and petitioner does not seek such relief. The sole issue in this case is whether the INS has authority to withhold deportation under either of the statutes referred to, if in its discretion it chose to do so. The Immigration Judge and the Board of Immigration Appeals held that Congress had deprived them of this authority. Petitioner argued that they were wrong, and that the Court should so declare, and should send the case back to the immigration authorities for them to decide whether to use that power. The Court now holds that their reading of the law was in fact correct.
CONCLUSION
For the reasons stated, the stay of deportation is vacated, and the petition is denied.