Opinion
00-CV-0581E(Sr)
January 10, 2002
MEMORANDUM and ORDER
Elsford Pemberton petitioned, pro se, for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 July 5, 2000 challenging a January 10, 2000 order of deportation issued by Judge John B. Reid of the Batavia, N.Y. Immigration Court. Respondents filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure November 9, 2000 which the undesigned referred to Magistrate Judge H. Kenneth Schroeder, Jr. pursuant to 28 U.S.C. § 636(b)(1)(B) for a determination of the merits of the factual and legal issues and a Report and Recommendation ("RR") re such. Judge Schroeder filed his RR May 17, 2001 recommending that the motion to dismiss be granted.
Such Order became final June 6, 2000 when the Board of Immigration Appeals dismissed petitioner's appeal.
Petitioner timely filed his objections to the RR July 17, 2001 and such were submitted on the papers August 17, 2001 and have thereafter been before this Court for disposition.
Petitioner, a native and citizen of Trinidad and Tobago came to the United States as a lawful permanent resident May 5, 1987. He was convicted of third degree criminal possession of a weapon May 2, 1991, fourth degree attempted grand larceny December 19, 1994 and third degree attempted criminal possession of a controlled substance May 30, 1997. On August 17, 1999 petitioner was served with a Notice to Appear which charged him as being deportable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) and (a)(2)(C) because of his controlled substance and weapon convictions. After a hearing held December 20, 1999, — during which petitioner was represented by counsel — Judge John B. Reid of the Batavia, N.Y. Immigration Court issued an oral decision January 10, 2000 ordering that petitioner be deported. Judge Reid held that petitioner was removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) and (a)(2)(C) because of his controlled substance and weapons convictions. Judge Reid further held that petitioner was ineligible for cancellation of removal under 8 U.S.C. § 1229b(a) because he had not continuously resided in the United States for at least seven years as required by 8 U.S.C. § 1229b(a)(2) in that petitioner had entered the United States May 5, 1987 and, pursuant to 8 U.S.C. § 1229b(d)(1), such period of continuous residence was deemed to have terminated November 11, 1993 when he committed the crime — fourth degree attempted grand larceny — of which he was convicted December 19, 1994 because such is a crime of moral turpitude as referenced in 8 U.S.C. § 1182(a)(2)(A)(i)(I) and 1227(a)(2)(A)(I). Judge Reid further held that, assuming arguendo that petitioner was eligible for cancellation of removal, he would nevertheless deny such pursuant to his vested discretion. The Board of Immigration Appeals dismissed petitioner's appeal from that order June 6, 2000.
In its Order dismissing petitioner's appeal, the Board of Immigration Appeals noted that relief from removal pursuant to 8 U.S.C. § 1182(c) was not available to petitioner because such had been repealed in 1996.
In his petition, petitioner claims that he is eligible for relief from removal pursuant to 8 U.S.C. § 1182(c) because he had continuously resided in the United States as a lawful permanent resident for over seven years before he was served with the Notice to Appear and because he had not served at least five years of imprisonment for an aggravated felony. Petitioner contends that the retroactive application of the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") — which had repealed 8 U.S.C. § 1182(c) — to his removal proceedings is a violation of his Fifth Amendment right to due process because his arrests for the various offenses which resulted in his convictions for third degree criminal possession of a weapon, fourth degree attempted grand larceny and third degree attempted criminal possession of a controlled substance all predated the enactment of AEDPA and IIRIRA.
"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 without regard to the provisions of subsection (a) of this section (other than paragraphs (3) and (9)(C)). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title. The first sentence of this subsection shall not apply to an 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).
Respondents moved to dismiss the petition on the basis that petitioner's conviction for third degree attempted criminal possession of a controlled substance occurred May 30, 1997 — i.e., after the enactment of the AEDPA and IIRIRA and, because it is the date of the conviction — not of the date of the offense/arrest that is relevant —, he is ineligible for relief from removal under 8 U.S.C. § 1182(c). The RR recommended that the motion to dismiss the petition be granted on the basis that petitioner was not eligible for relief from removal pursuant to the former 8 U.S.C. § 1182(c) because his conviction for third degree attempted criminal possession of a controlled substance occurred after such provision had been repealed by the passage of AEDPA and IIRIRA.
In his objections to the RR petitioner raised four grounds — viz., (1) that the RR erroneously found that his continuous residence in the United States for purposes of 8 U.S.C. § 1229b was for only six and one-half years, (2) that the RR erroneously found him to be an aggravated felon, (3) that the RR erroneously stated that he had never raised as an issue in this Court the length of his continuous residence in the United States and (4) that the RR erroneously stated that he could have applied for discretionary relief from deportation if removal proceedings had been commenced against him at the time of his convictions for third degree criminal possession of a weapon and fourth degree attempted grand larceny.
Petitioner is under the erroneous perception that the RR was issued by the undersigned; it was issued by Magistrate Judge Schroeder.
Petitioner's contention that the RR erroneously found that his continuous residence in the United States for purposes of 8 U.S.C. § 1229b was only six and one-half years is incorrect. Not only was this issue not raised before this Court, the RR did not make such finding but simply stated:
"The BIA concluded that petitioner was statutorily ineligible for cancellation of removal by holding that petitioner's residence in the U.S. commenced on May 5, 1987, and concluding that his period of continuous residence ended when he committed his grand larceny offense on November 11, 1993. As a result, petitioner's period of continuous residence for cancellation eligibility lasted only six and a half years, thereby making it short of the required seven years." RR at 3.
As is evident from such passage, the RR was only recounting the findings of the Board of Immigration Appeals, not making a de novo finding on the length of petitioner's continuous residence in the United States for purposes of 8 U.S.C. § 1229b. Accordingly, petitioner's objections on such ground will be overruled.
Petitioner's second ground for objecting to the RR is that such erroneously adjudicated him to be an aggravated felon. Again, petitioner has misread the RR which simply stated that"
"The INS found petitioner to be subject to INA § 241, by which an alien may be removed for having committed an aggravated felony or a drug offense, see 8 U.S.C. § 1227, and, as an alien subject to removal for conviction of a controlled substance offense, ineligible for `cancellation of removal,' see 8 U.S.C. § 1229b." RR at 6.
Inasmuch as the RR did not "adjudicate" petitioner to be an aggravated felon, or even intimate that he was such, petitioner's objections to the RR on such ground will be overruled.
Petitioner's third ground for objecting to the RR is that such erroneously stated in a footnote that he had never raised in this Court the issue of whether he had continuously resided in the United States for seven years for purposes of 8 U.S.C. § 1182(c). While the undersigned agrees with petitioner that such issue is properly before this Court, such footnote was mere dicta and did not affect the recommendation that the petition be dismissed. Petitioner's objection to the RR on such ground will therefore be overruled because such is an immaterial point which did not affect the ultimate determination.
"Prior to AEDPA and IIRIRA, the Attorney General had discretion to waive removal of aliens who had an unrelinquished domicile in the United States for at least seven years pursuant to old INA § 212(c), unless the alien was removable because of an aggravated felony for which he had served five years in prison. See 8 U.S.C. § 1182(c) (1994). In his administrative proceeding, petitioner was determined not to have met the seven year requirement. This issue has not been raised by petitioner in his petition and thus is not before this Court." RR at 5-6 n. 2.
The final ground on which petitioner objects to the RR is that such speculatively and erroneously stated that he could have applied for discretionary relief from deportation if removal proceedings had been commenced him at the time of his first two convictions. This objection to the RR is also on an irrelevant ground because it is also mere dicta. Petitioner appears to be under the mistaken belief that he was not removable after his first two convictions because AEDPA and IIRIRA had not been enacted at such time and therefore he could not have requested discretionary relief from removal under 8 U.S.C. § 1182(c). While petitioner is correct that he could not request relief from removal at such time — because no removal proceedings had been commenced against him —, he is incorrect in his apparent assumption that criminal aliens were not deportable prior to the enactment of AEDPA and IIRIRA.
Accordingly, petitioner's objection to the RR on such ground will be overruled.
While petitioner's objections to the RR are impertinent, because he is proceeding pro se and because the true basis for his petition/objections appears to be that the date he committed the offense for which he was later convicted of fourth degree attempted grand larceny was used to determine that he did not meet the seven-year residency requirement for cancellation of removal under 8 U.S.C. § 1229b, whereas the date of his conviction for third degree attempted criminal possession of a controlled substance was used to find him ineligible for relief from removal pursuant to 8 U.S.C. § 1182(c) such will be briefly addressed.
For purposes of cancellation of removal under 8 U.S.C. § 1229b, an alien's period of continuous residence in the United States is deemed to terminate on the date the alien commits an offense involving moral turpitude. 8 U.S.C. § 1229b(d)(1) and 1182(a)(2)(A)(i)(I). In contrast, for purposes of relief from removal under the former 8 U.S.C. § 1182(c), the Second Circuit Court of Appeals has held that such relief is unavailable to an alien who has been convicted of a crime after such section was repealed even if they had committed the underlying offense before such section was repealed. Domond v. U.S. I.N.S., 244 F.3d 81, 85-86 (2d Cir. 2001).
"Section 440(d) imposes no new legal consequences on aliens * * * whose criminal conduct pre-dates AEDPA, but whose convictions came after AEDPA's enactment. It is the conviction, not the underlying criminal act, that triggers the disqualification from § 212 [ 8 U.S.C. § 1182(c) (repealed 1996)] relief. While the underlying criminal conduct is crucial to the conviction, it is not the conduct that bars relief under the statutory scheme. Upon conviction, the punishment for the underlying criminal conduct was and remains some term of imprisonment plus deportation." Ibid.
Internal punctuation, citation and footnote omitted.
Accordingly, it is hereby ORDERED that the objections to the RR are overruled, that the RR is adopted in its entirety, that the motion to dismiss is granted, that the petition for habeas corpus is dismissed and that this case shall be closed in this Court.