Summary
finding that "[t]he immigration laws require that [the petitioner] . . . present his nationality claim in a petition for review with the appropriate court of appeals
Summary of this case from Dorival v. AshcroftOpinion
01 Civ. 5871 (HB)
August 29, 2002
OPINION ORDER
Petitioner Cristian Rivas ("Rivas") filed a petition for habeas relief pursuant to 28 U.S.C. § 2241, challenging a final order of removal by the Board of Immigration Appeals ("BIA") in February 2001. Specifically, Rivas seeks to vacate the decision by the BIA and remand his proceedings to afford him discretionary relief from removal under either section 212(c) or 212(h) of the Immigration and Nationality Act of 1952 ("INA") §§ 212(c), (h), 8 U.S.C. § 1182(c), (h). In the alternative, Rivas asserts that he cannot be deported because he is eligible for derivative citizenship under INA § 321, 8 U.S.C. § 1432(a) through the naturalization of his mother. For the following reasons, Rivas' s claim of derivative citizenship is dismissed for lack of jurisdiction and transferred to the Court of Appeals for the Second Circuit. Petitioner's removal or deportation is hereby stayed in the interests of justice pending review by the Circuit. Rivas's remaining claims are DENIED.
I. BACKGROUND
Rivas was born in the Dominican Republic on December 20, 1977, and admitted to the United States in New York as a lawful permanent resident on September 5, 1991. Less than four years later, Rivas was arrested by police on August 20, 1995, and charged with second degree murder under N.Y. Penal L. § 125.25. Rivas pled guilty in New York State Supreme Court to first-degree burglary, a class B felony under N.Y. Penal L. § 140.30 and an "aggravated felony" as defined under the immigration laws. On July 31, 1996, Rivas was sentenced to a term of six to eighteen years imprisonment. The Immigration and Naturalization Service ("INS") on June 1, 2000, served Rivas by mail at the Greene Correctional Facility with a Notice to Appear, charging him as a removable alien convicted of an aggravated felony, pursuant to INA § 237(a)(2)(A)(iii). See 8 U.S.C. § 1227(a)(2)(A)(iii). An administrative hearing — the first in a line of adjournments — was held before an Immigration Judge ("IJ") on July 11, 2000.
Aggravated felony under the immigration laws? is defined as, inter alia, a "burglary offense for which the term of imprisonment [is] at least one year." See 8 U.S.C. § 1101(a)(43)(G); see also United States v. Luna-Reynoso, 258 F.3d 111, 116 (2d Cir. 2001) (finding that New York State conviction for third-degree burglary, for which sentence exceeded one year, was "aggravated felony").
After adjourning the removal hearings twice at Rivas's behest to afford him an opportunity to retain legal counsel — he was ultimately unable to obtain a lawyer — the IJ issued an oral decision on October 11, 2000, ordering Rivas removed from the United States to the Dominican Republic. In particular, the IJ found that Rivas had failed to prove that he had derived United States citizenship through his mother's naturalization, that his aggravated felony conviction barred him from relief, and that following his conviction for an aggravated felony he was ineligible to apply for a § 212(c) waiver because as amended that section excludes those men and women who had served five years in prison. On February 28, 2001, the order of removal was affirmed by the BIA. Finally, in May 2001, the BIA denied Rivas's motion for reconsideration.
Although Rivas does not argue here as a ground for relief that his failure to obtain counsel for the removal hearing was a denial of due process, I note that, while unfortunate, his appearance without counsel after he was afforded two adjournments has been held to constitute an implied waiver of counsel. See Hidalgo-Disla v. INS, 52 F.3d 444, 447 (2d Cir. 1995) ("If an immigration judge could not proceed with a hearing, after two adjournments, without the alien's express waiver, an alien seeking to stave off deportation would be able to win an infinite number of adjournments, and would be better off appearing without a lawyer than with one.") (emphasis in original).
II. DISCUSSION
The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub.L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Pub.L. No. 104-208, 110 Stat. 3009, substantially limited the ability of certain resident aliens to contest orders of deportation. See Brown v. United States, 2002 WL 1836752, at *1 (S.D.N.Y. Aug. 12, 2002) (Martin, J.). Prior to 1996 and the enactment of both the AEDPA and IIRIRA, a lawful permanent resident facing deportation was entitled to apply to the Attorney General for a "waiver of deportation" under INA § 212(c). See Green-Mendoza v. Ashcroft, 2002 WL 1870285, at *1 (S.D.N.Y. Aug. 14, 2002) (Chin., J.); Henry v. Ashcroft, 175 F. Supp.2d 688, 690 (S.D.N.Y.2001). To be considered eligible for a § 212(c) waiver, a criminal alien was required to show that he had been admitted to the United States as a lawful permanent resident and that he had resided in this country continuously for at least seven years. See INS v. St. Cyr, 533 U.S. 289, 295 (2001) (noting that section 212(c) provided that "any permanent resident alien with a lawful unrelinquished domicile of seven consecutive years" was eligible to seek such relief). If the relief was granted, the alien would remain a permanent resident, and deportation proceedings would be terminated. St. Cyr, 533 U.S. at 295. In 1990, however, as noted supra, Congress amended § 212(c) to preclude any alien from seeking a waiver if the alien had served five-years or more in prison for an aggravated felony. Id. at 297.
The enactment of the AEDPA § 440(d) in 1996 further amended § 212(c) by "barring relief for individuals who were deportable because they had committed certain categories of offenses," including an "aggravated felony," regardless of time served in prison. Yesil v. Reno, 973 F. Supp. 372, 375 (S.D.N.Y. 1997) (Chin, J.); see also AEDPA § 440(d). Soon after, pursuant to IIRIRA, Congress repealed § 212(c) completely and replaced "deportation proceedings" with "removal proceedings," and "suspension of deportation" with "cancellation of removal." Brown, 2002 WL 1836752, at * 1; 8 U.S.C. § 1229. Under the IIRIRA, anyone previously convicted of an aggravated felony was precluded from seeking cancellation of removal. St. Cyr, 533 U.S. at 297.
Although IIRIRA eliminated relief under the former § 212(c), the Supreme Court in St. Cyr held that relief nonetheless would remain available to aliens in removal proceedings who entered guilty or nolo contendere pleas prior to the September 30, 1996 enactment of IIRIRA. St. Cyr, 533 U.S. at 326. In the instant case, the petitioner pleaded guilty no later than July 1996, and therefore falls within the applicable St. Cyr time period. In St. Cyr., the Supreme Court limited the retroactive effect of both the AEDPA and IIRIRA and held that "§ 212(c) relief remain[ed] available for aliens . . . whose [pre- AEDPA/pre-IIRIRAI] 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." St. Cyr, 533 U.S. at 326. The Supreme Court reasoned that such aliens had "settled expectations" of qualifying for § 212(c) relief at the time they had entered their pleas and therefore Congress's repeal of the provision was impermissibly retroactive as to such aliens. St. Cyr, 533 U.S. at 326.
As the government notes, the precise date of Rivas's guilty plea is not specified in the record. Rivas, however, was arrested on February 14, 1995, and sentenced on July 31, 1996, so his plea must have been entered some time in between. In any event, if Rivas in fact plead guilty after the enactment of the AEDPA on April 24, 1996, he would be ineligible for cancellation of removal as an aggravated felon. Cancellation of removal is available only to aliens not convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3).
A. Rivas is ineligible for a section 212(c) waiver
Rivas claims that he has a right to apply for the § 212(c) waiver under St. Cyr because he pled guilty to first-degree burglary prior to the enactment of the IIRIRA. I disagree. Rivas would only be eligible for § 212(c) relief if he "would have been eligible . . . at the time of the plea under the law then in effect." St. Cyr, 533 U.S. at 326. At the time of Rivas's plea, the Attorney General had discretion to waive deportation for (1) any lawful permanent resident (2) who had maintained a permanent domicile for seven years and (3) who had not been convicted of an "aggravated felony" for which he served a term of imprisonment of five years or longer. See Sol v. INS, 274 F.3d 648, 649 n. 3 (2d Cir. 2001). Rivas clearly had not attained the requisite seven years of continuous lawful residence in the United States, since he entered the country as a lawful permanent resident in September 1991 and was sentenced on July 1996. See 8 U.S.C. § 1182(c); see also Tim Lok v. INS, 681 F.2d 107, 110 n. 5 (2d Cir. 1982) (noting that the legislative history "clearly states that § 212(c) was intended to provide relief only for aliens who spent seven years in the United States before they got in trouble"). Rivas therefore would have been ineligible for § 212(c) relief at the time of his plea, and such relief is accordingly not available to him now. See e.g., Brito-DeLeon v. Ashcroft, 188 F. Supp.2d 340, 346 (S.D.N.Y. 2002) (Preska, J.) (finding petitioner who had not established that he was a lawful permanent resident ineligible for § 212(c) relief because he would not have been eligible for relief at the time of his plea under the law then in effect); see also Tulloch v. INS, 175 F. Supp.2d 644, 645 (S.D.N.Y. 2001)(Batts, J.) (finding petitioner ineligible for § 212(c) discretionary waiver unless alien meets all three statutory requirements).
B. Rivas is ineligible for a section 212(h) waiver
Affording Rivas's petition a liberal reading, Rivas also seeks, although he fails to explicitly request, a waiver of deportation pursuant to INA § 212(h). Under INA § 212(h), the Attorney General has the discretion to waive deportation when such deportation would result in a substantial or "extreme hardship" to a United States citizen or lawful permanent resident spouse, parent, or child. 8 U.S.C. § 1182(h). To qualify for § 212(h) discretionary relief, Rivas must (1) be a family member of a United States citizen or legal resident and (2) the IJ must determine that a denial of the waiver would result in extreme hardship to that family member. See Fernandez-Antonia, 278 F.3d 150, 160 (2d Cir. 2001) (citing 8 U.S.C. § 1182(h)). Rivas simply fails to set forth any evidence of "extreme hardship" that would be imposed on any family member who is a United States citizen or lawful permanent resident. See, e.g., Fernandez-Antonia, 278 F.3d at 161 (finding that "extreme hardship" in the context of a 212(h) waiver should be construed narrowly, as the waiver itself is considered "exceptional relief").
Even if Rivas could establish "extreme hardship," which he does not, he would nonetheless be barred from § 212(h) relief since he was convicted of committing an aggravated felony. See Fernandez-Antonia, 278 F.3d. at 160-61; see also Beharry v INS, 183 F. Supp.2d 584, 593 (E.D.N.Y. 2002)( Weinstein, J.) (finding § 212(h) discretionary relief unavailable to lawful permanent residents who have been convicted of the commission of an aggravated felony).
C. Rivas's claim to derivative citizenship is transferred for lack of jurisdiction
In the alternative, Rivas asserts that he can not be deported because he is eligible for derivative citizenship. Prior to 2000, INA § 321(a) provided that a child born outside of the United States of alien parents and residing in the United States as a lawful permanent resident becomes a citizen upon the naturalization of both parents, or where the parents are legally separated, by the naturalization of the parent having legal custody of the child. 8 U.S.C. § 1432(a) (1988). Further, the child must be under age eighteen at the time of such naturalization. 8 U.S.C. § 1432(a)(4) (1988). On October 30, 2000, Congress enacted the Child Citizenship Act of 2000, which amended the INA to confer derivative citizenship upon a child with one citizen parent. 8 U.S.C. § 1431(a) (2000); see also Lee v. Ashcroft, 2002 WL 1585856, at *4 (E.D.N.Y. July 15, 2002) (Johnson, J.) (noting that after the effective date of February 27, 2001, the new rule automatically confers citizenship on a child under the age of eighteen upon the naturalization of one parent). At his removal hearing, Rivas similarly asserted a claim of derivative citizenship through his mother's naturalization, although not until this proceeding did he attach to his petition a copy of his mother's naturalization certificate. His mother, Enriqueta Soriano ("Soriano"), was naturalized on March 20, 1996. Rivas argues, however, that since his mother initiated the application process for citizenship on February 22, 1995, and was interviewed and her application completed in July 1995, while he was still a minor, he is a United States citizen.
Rivas's argument, the government asserts, is unavailing because the determinative date is the date the oath is administered and not the date of the initial application. See 8 U.S.C. § 1448(a) (acquisition of naturalized citizenship takes place only upon applicant's recitation of oath of allegiance to United States). See Lewis v INS, 2002 WL 1150158, at *5 (E.D.N.Y. May 7, 2002) (Johnson, J.) (citing United States v. Ginsberg, 243 U.S. 472, 475 (1917)). Prior to his mother taking the oath, Rivas had already turned eighteen on December 20, 1995. The government contends that Rivas is therefore ineligible for derivative citizenship.
Rivas's claim of derivative citizenship, even if an effective argument, is not properly before this Court. The immigration laws require that Rivas instead present his nationality claim in a petition for review in the appropriate court of appeals, in this case, the Second Circuit. Section 242(b)(5) of the INA provides with respect to the treatment of nationality claims that "[i]f the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim." 8 U.S.C § 1252(b)(5)(A); see also Duran v. Reno, 1998 WL 54611, at *3-4 (S.D.N.Y. Feb. 10, 1998) (Cote, J.) (finding no jurisdiction to hear petitioner's citizenship claim), aff'd mem., 165 F.3d 13 (2d Cir. 1998) (table). However, if the "court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented," it will transfer the case back to the district court "for the judicial district in which the petitioner resides for a new hearing . . ." Id. at § 1252(b)(5)(B).
While I do not reach the merits of Rivas's citizenship claim, I note the date citizenship was conveyed upon petitioner's mother is pivotal. At most he appears to be three months too late to qualify for the relief he seeks. As with other instances of close-calls, the courts typically find ways to construe statutes with the true administration of justice and equity. That said, it seems not unreasonable that Rivas's mother could be deemed to have attained citizenship for the purposes of his derivative claim on a date prior to her oath, see Galvez-Letona v. Kirkpatrick, 54 F. Supp.2d 1218, 1224 (D.Utah, 1999) ("Although the attachment and oath requirements do play an important role in becoming a citizen, these requirements are not essential."), or that a delay in Soriano's application procedure by no fault of her own somehow precluded the success of Rivas's claim. See Application of Martini, 184 F. Supp. 395, 401 (S.D.N.Y. 1960) (van Pelt Bryan, J.) ("When one takes all necessary affirmative steps to comply with the literal requirements of a statute and is prevented from complying fully by the failure of an administrative agency to take the steps necessary to permit his compliance he will not be barred from asserting his rights under that statute."). Perhaps even here, however, petitioner is out of luck. In a supplemental letter submitted to the court at my request, the government notes that a recent request to INS for further information as to Soriano's records revealed that INS had administered the naturalization examination to Soriano on March 7, 1996, and approved her application that same day. She took the oath two weeks later on March 20, 1996. Rivas on the other hand asserts, without providing any documentation, that "I was purported to be issued my citizenship when my mother's interview was held in July, 1995. However, she was rescheduled and then I was arrested in August, 1995." Pet. at 2.
Upon further development of the record, notably sparse at this juncture, the principle of curiae neminem gravabit would also not be misplaced:
We content ourselves with saying that the rule established by the general concurrence of the American and English courts is, that where the delay in rendering a judgment or a decree arises from the act of the court, that is, where the delay has been caused either for its convenience, or by the multiplicity or press of business, either the intricacy of the questions involved, or of any other cause not attributable to the laches of the parties, the judgment or the decree may be entered retrospectively, as of a time when it should or might have been entered up. In such cases, upon the maxim actus curiae neminem gravabit, — which has been well said to be founded in right and good sense, and to afford a safe and certain guide for the administration of justice, — it is the duty of the court to see that the parties shall not suffer by the delay. A nunc pro tunc order should be granted or refused, as justice may require in view of the circumstances of the particular case.
Application of Martini, 184 F. Supp. at 401-02 (quoting Mitchell v. Overman, 103 U.S. 62, 64-65 (1880).
In any event, Rivas's claim is transferred to the Court of Appeals for the Second Circuit. See 28 U.S.C. § 1631 (stating that whenever a court finds that it lacks jurisdiction, it "shall, if it is in the interest of justice, transfer such action . . . to any other such court in which the action . . . could have been brought").
III. CONCLUSION
For the foregoing reasons, Rivas's claim of derivative citizenship is dismissed for lack of jurisdiction and transferred to the Court of Appeals for the Second Circuit. Rivas' s remaining claims are DENIED. Further, petitioner's removal or deportation is hereby stayed in the interests of justice pending review by the Circuit. The clerk of the court is directed to close this case and remove it from my docket.