01 Civ. 9864 (JSM)
August 8, 2002
MEMORANDUM OPINION AND ORDER
Petitioner, Derrick Barrington Brown, proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking an order enjoining Petitioner's detention and removal from the United States. Petitioner was convicted by guilty plea on two counts of attempted robbery and convicted on one count of robbery for which he had served a total of over five years imprisonment at the time of the Immigration Judge's order to deport Petitioner. Petitioner contends that he was entitled apply to the United States Attorney General for discretionary relief from deportation pursuant to Immigration and Nationality Act ("INA") § 212(c), 8 U.S.C. § 1182 (1990). The petition for relief is denied.
Petitioner is a native and citizen of Jamaica. Petitioner entered the United States on August 4, 1992, as a lawful permanent resident. On March 1, 1994, Petitioner was convicted upon a plea of guilty of two counts of attempted robbery in the second degree in the Supreme Court of the State of New York, County of the Bronx. (Certified Record at 66.) On these counts, Petitioner was sentenced to one to three years imprisonment and actually served 705 days in prison. (Certified Record at 39, 90, 98.) Then, on October 10, 1996, Petitioner was convicted of robbery in the first degree and sentenced to six to thirteen years in prison where he remains today.
On April 29, 1999, the Immigration and Naturalization Service initiated removal proceedings against Petitioner. (Certified Record at 110, 112.) After two adjournments to allow Petitioner to gain counsel, he was ordered deported by the Immigration Judge ("IJ") on June 21, 2000. (Certified Record at 64, 68.) The IJ ordered Petitioner deported pursuant to INA § 237(a) which precludes aliens convicted of aggravated felonies from discretionary relief from deportation. (Certified Record at 66.) On November 27, 2000, the Petitioner appealed to the Board of Immigration Appeals ("BIA"). (Certified Record at 40.) The BIA vacated and remanded the IJ's judgement under INS v. St. Cyr, 121 S.Ct. 2271 (2001), holding that 212(c) relief from deportation is still applicable to aliens who plead guilty to aggravated felonies prior to the enactment of statutes which effectively eliminated 212(c) relief. (Certified Record at 42.) On February 15, 2001, the IJ held another hearing on remand. (Certified Record at 22, 27, 29.) The IJ found that Petitioner was statutorily ineligible for relief since he had served over five years imprisonment for one or more aggravated felonies. Id. Accordingly, Petitioner was ordered removed. Id. Petitioner again filed a timely appeal to the BIA which was dismissed on May 31, 2001.
In 1996, Congress substantially limited the right of resident aliens to apply for discretionary relief from deportation by enacting the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, 8 U.S.C. § 1182(c), and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, 8 U.S.C. § 1229(b). Section 212(c) of the INA gave the Attorney General discretion to waive the deportation of resident aliens convicted of aggravated felonies for which a term of less than five years imprisonment was served. 8 U.S.C. § 1182 (1990). With the enactment of AEDPA section 440(d), all aliens convicted of aggravated felonies were excluded from discretionary relief from deportation previously available under 212(c). Id. Then, pursuant to IIRIRA, Congress repealed section 212(c) altogether and replaced it with a different type of relief from removal — cancellation of removal. 8 U.S.C. § 1229.
The Petitioner claims that he has a right to apply for discretionary relief from deportation based on the Supreme Court's ruling in St. Cyr. INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001). In St. Cyr, the Supreme Court found that the IIRIRA cancellation of removal provision "imposes an impermissible retroactive effect on aliens who, in reliance on the possibility of 212(c) relief, pled guilty to aggravated felonies." St. Cyr, 533 U.S. 289 at 315, 121 S.Ct. at 2287. Thus, under St. Cyr, section 212(c) continues to apply to those defendants who plead guilty prior to the enactment of the AEDPA and IIRIRA. Since retroactive application of AEDPA and IIRIRA would attach new legal consequences contrary to "familiar considerations of fair notice, reasonable reliance, and settled expectations," Landgraf v. USI Film Products, 511 U.S. 244, 270, 114 S.Ct. 1483, 1499 (1994), section 212(c) relief remains available for those who would have been eligible for section 212(c) relief at the time of their plea notwithstanding their later conviction. St. Cyr, 533 U.S. at 326, 121 S.Ct. at 2293. Since Petitioner pled guilty on his charges for attempted robbery and robbery prior to April 24, 1996, when the amendment to 212(c) came into effect, he is entitled to seek section 212(c) relief as it existed in 1994.
Although, under St. Cyr, the Petitioner was entitled to seek section 212(c) relief, the Petitioner is nevertheless statutorily ineligible for relief under that section. In 1994, section 212(c) discretionary relief from deportation was available for aliens who served a prison term of less than five years for an aggravated felony. 8 U.S.C. § 1182 (1990). In this case, the Petitioner pled guilty to two counts of attempted robbery in the second degree in March of 1994. The Immigration and Naturalization Services initiated proceedings against Petitioner on April 29, 1999. By April of 1999, Petitioner had served over four years in prison. Having served less than five years in prison, Petitioner was still eligible for 212(c) waiver. However, under Buitrago-Cuesta v. INS, 7 F.3d 291, 296 (2d Cir. 1993), the time that aliens spend in prison while an action is pending is used in calculating the total amount of prison time for purposes of a section 212(c) waiver. By June 21, 2000, when Petitioner was ordered deported by the Immigration Judge, he had served over five years imprisonment. Petitioner's order of deportation became final on May 31, 2001 when the BIA dismissed Petitioner's second appeal. At that time Petitioner had served over six years imprisonment. Since Petitioner had served over five years in prison on an aggravated felony conviction, he was not eligible for 212(c) waiver under the law that existed in 1994. Accordingly, even considering the Supreme Court's holding in St. Cyr, Petitioner is ineligible for section 212(c) waiver of deportation.
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2241 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review, and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.