Lewis
v.
Imigration and Naturalization Services

United States District Court, E.D. New YorkMay 7, 2002
00 CV 07508 (SJ) (E.D.N.Y. May. 7, 2002)

00 CV 07508 (SJ)

May 7, 2002

Plaintiff, pro se, ANDREW A. LEWIS, Waterproof, LA

Attorneys for Respondent, ALAN VINEGRAD, ESQ., Jennifer Schantz, Esq. Acting United States Attorney Eastern District of New York, Brooklyn, N.Y.


MEMORANDUM AND ORDER


Presently before the Court is Petitioner Andrew Lewis's ("Petitioner") application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging his final order of removal. He argues that he should be eligible for a waiver of deportation pursuant to § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (repealed) (1994) ("§ 212(c)"), because he was convicted of an aggravated felony prior to the enactment of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (Pub.L. No. 104-298, 110 Stat. 1214) ("IIRIRA"). In his supplemental brief dated March 2, 2001, Petitioner contends that he is eligible for derivative citizenship as of August 1991, the date when his mother initially filed her petition for naturalization. Additionally, in his latest memorandum of August 10, 2001, Petitioner argues that he should not be denied a discretionary waiver hearing because he took his case to trial, that he has been subjected to indefinite detention, and that he should be eligible for a bond hearing. For the reasons stated herein, Petitioner's request for a writ of habeas corpus is denied to the extent that he seeks a waiver of deportation, a bond hearing, and derivative citizenship. To the extent that he has shown that the possibility of removal is remote, the government is directed to rebut this showing or to release Petitioner pending removal.

BACKGROUND

Petitioner was born in Barbados on November 29, 1972 and entered the United States as a lawful permanent resident on November 3, 1978. On or about June 4, 1996, Petitioner was convicted by a jury of Robbery in the First Degree, Robbery in the Second Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of Stolen Property in the Fifth Degree. As a result of these convictions, Petitioner was sentenced to terms of imprisonment of four to twelve years for the first robbery count, two to six years for the second robbery count, and one year for the possession of stolen property count.

On or about October 23, 1998, the Immigration and Naturalization Services ("INS" or "Respondent") issued to Petitioner a Notice to Appear and charged Petitioner with removability from the United States as an aggravated felon, pursuant to § 237(a)(2)(A)(III) as it relates to §§ 101(a)(43)(F) and (G) and 237(a)(2)(C) of the Immigration and Nationality Act ("INA"). On February 26, 1999, after a hearing before the Immigration Court, Petitioner was ordered removed to Barbados. Petitioner reserved his right to appeal that decision, but did not file an appeal before the expiration of his right to do so on March 29, 1999. On December 19, 2000, Petitioner filed a motion for reconsideration, which was subsequently denied by the Immigration Court on January 2, 2001. The Immigration Judge found that Petitioner had until February 1, 2001 to file an appeal of that decision, but he did not do so. Petitioner was released from state authorities into INS custody on April 24, 2000, and remains there awaiting removal.

Petitioner filed the current writ of habeas corpus on December 27, 2000 contending that he should be eligible for relief pursuant to § 212(c) of the INA. He argues that he was convicted of an aggravated felony by a jury prior to the enactment of the IIRIRA. Therefore, he contends, the application of § 304 of the IIRIRA to his case, which bars cancellation of removal for all aliens convicted of aggravated felonies, would have an impermissible retroactive effect.

On March 2, 2001, Petitioner filed a supplemental brief challenging his final order of removal from the United States. Petitioner argues that he qualified for derivative citizenship as of August 1991 because his mother Gloria Lewis first filed an application for naturalization as of that date. Petitioner then filed an "Addendum" to his petition on August 10, 2001, claiming that because he was convicted by a jury, rather than through a plea agreement, the denial of a discretionary waiver under § 212(c) of the INA would violate the equal protection clause. He also argues that he has been subjected to indefinite detention defined by Zadvydas v. Davis, 533 U.S. 678 (2001), as he has yet to be deported. He further contends that he should be eligible for a bond pending his removal date, pursuant to Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001). On August 27, 2001, Petitioner notified the court that INS officials were in the process of deporting him. Respondent filed a reply to the Petitioner's August 10, 2001 addendum in a letter dated September 20, 2001. Petitioner filed another submission on April 4, 2002, with exhibits supporting his claims under Zadvydas.

DISCUSSION

I. Exhaustion Requirement

Respondent argues that Petitioner's petition should be dismissed for failure to exhaust his claims before the Board of Immigration Appeals, because Petitioner never appealed the Immigration Judge's decision to deny his motion for reconsideration. See Lleo-Fernandez v. INS, 989 F. Supp. 518, 519 (S.D.N.Y. 1998) ("[A]liens challenging detention by INS must first exhaust administrative remedies before obtaining habeas review."). However, "[a]n exception to the exhaustion requirement is appropriate in certain circumstances, such as where administrative appeal would be futile, or where a claimant raises a constitutional claim that could not be resolved through the administrative process." Maria v. McElroy, 68 F. Supp.2d 206, 216 (S.D.N.Y. 1999). See also Howell v. INS, 72 F.3d 288, 291 (2d Cir. 1995). Here, Petitioner claimed that he has been harmed by the BIA's application of a congressional enactment. The BIA lacks the authority to review such a claim. See Zadvydas, 533 U.S. at 688 (upholding the right of aliens to challenge the extent of the Attorney General's authority under a specific statute). Therefore, this Court retains jurisdiction and will not dismiss the petitioner's claims for failure to exhaust his administrative remedies.

II Relief Under Section 212(c) of the INA

Congress passed the Antiterrorism and Effective Death Penalty Act ("AEDPA") (Pub.L. No. 104-132, 110 Stat. 1214) and the IIRIRA in 1996. These two pieces of legislation drastically changed immigration law. Specifically, § 440(d) of the AEDPA limited the availability of discretionary waivers of deportation for aliens convicted of aggravated felonies, and § 304 of the IIRIRA eliminated this relief altogether for this class of aliens.

Petitioner argues that he should be granted relief pursuant to § 212(c) of the INA because he was convicted of an aggravated felony prior to the enactment of the IIRIRA, and therefore, § 304 would have an impermissible retroactive effect as applied to him. Petitioner relies primarily on the recent case of St. Cyr v. INS, 533 U.S. 289 (2001), in which the Supreme Court held that to apply § 304 of the IIRIRA to aliens who pled guilty to their aggravated felony convictions before the passage of the statute would in fact violate principles of retroactivity. Accordingly, this class of aliens must be granted 212(c) discretionary waiver hearings if their plea agreements predated the passage of the IIRIRA. However, since Petitioner was convicted by a jury, the St. Cyr exception to the application of § 304 is inapplicable to him.

To decide if the application of a statute has an impermissible retroactive effect, courts apply the test laid out in Landgraf v. USI Film Products, 511 U.S. 244 (1994). The court should first establish if Congress has defined the temporal reach of the statute. Landgraf, 511 U.S. at 280. If it has, the issue is thus resolved. If it has not, the court must consider if the application of the law "would impair rights a party possessed when he acted, increase his liability for past conduct, or impose new duties with respect to transactions already completed." Id.

The Second Circuit has analyzed the retroactive application of the IIRIRA and found that Congress has not defined the temporal reach of § 304. Domond v. INS, 244 F.3d 81, 85 (2001). Thus, the Court must consider if the application of § 304 of the IIRIRA changes the legal consequences of the Petitioner's actions. This Court finds that it does not impair rights the Petitioner had when he acted. In St. Cyr, the Supreme Court held that aliens who plead guilty to criminal convictions, and then are denied discretionary waiver hearings do "have a new disability [with] respect to transactions or considerations already past." 533 U.S. at 321 (quoting Landgraf, 511 U.S. at 269). Considering the frequency with which these waiver hearings were held in the past, and the fact that aliens were often successful in receiving waivers of deportation at these hearings, the Court has imputed reliance on the availability of this waiver to an alien who made an agreement with prosecutors prior to the enactment of the IIRIRA. See St. Cyr, 533 U.S. at 323. "Plea agreements involve a quid pro quo between a criminal defendant and the government. In exchange for some perceived benefit, defendants waive their constitutional rights (including the right to a trial) and grant the government numerous `tangible benefits, such as promptly imposed punishment without the expenditure of prosecutorial resources.'" Id., 533 U.S. at 321-22. Thus a criminal alien's decision to plead guilty is in fact a surrender of rights in exchange for the availability of relief See Id. Without this surrender, there can be no reliance, nor an increase in disabilities. However, Petitioner did not surrender his rights by pleading guilty, and thus cannot claim that he acted in reliance upon a discretionary waiver. Therefore, the statute was properly applied to his case and does not violate retroactivity.

Petitioner argues that making the St. Cyr exception unavailable to him violates his Fifth and Sixth Amendment rights. Yet Petitioner is not being denied a discretionary waiver because he exercised his Sixth Amendment right to a trial by jury. Petitioner claims that he considered the effects of taking his case to trial on his immigration status, and decided to pursue that course of action. (Pet.'s Traverse, at 4.) By doing so, he chose to rely on the jury, rather than the availability of a discretionary waiver, to secure his immigration status. This Court does not find credible the implication that Petitioner would have contested his prosecution more vigorously had he known that a discretionary waiver of deportation would not be available to him.

Nor does the nonapplication of the St. Cyr exception violate Petitioner's Equal Protection rights under the Fifth Amendment. Petitioner is not eligible for the exception because he is not in the class of defendants protected under St. Cyr. Because Petitioner chose to take his case to trial, rather than plead guilty in exchange for certain benefits, he is not similarly situated to those alien defendants who pled guilty. Accordingly, he is not entitled to the same treatment.

III. Indefinite Detention Claim

Petitioner also claims that he is being held in indefinite detention, in violation of Zadvydas v. Davis, 533 U.S. 678 (2001). In that case, the Court held that a reasonable post-removal period was six months, and "after this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id. at 701. However, where an alien's removal is delayed through his own actions, an otherwise unreasonable delay does not violate procedural due process. See Doherty v. Thomburgh, 943 F.2d 204, 211-12 (2d Cir. 1991).

The "reasonable" six-month period had already elapsed when Petitioner filed the instant habeas petition in December of 2000, since his removal had been pending since April 24, 2000. In response to that petition, the Court granted a stay of deportation on January 18, 2001. In the meantime, Petitioner has since alleged that the likelihood of removal is too removed to justify continued detention. Specifically, he contends that immigration officials have been unsuccessful at obtaining travel documents from the Consulate of Barbados. He provides supports for this claim through copies of the multiple letters sent by the INS to the Consulate General of Barbados on April 13, 2000, May 1, 2000, December 8, 2000, April 11, 2001, and August 27, 2001. (Pet.'s April 4, 2002 Addendum, Ex. A, at 1-5.) There is no evidence that the Consulate responded to any of these letters. Petitioner has also submitted a worksheet that appears to have been completed by a panel of INS interviewers which found that travel documents were unlikely to be issued in the foreseeable future and recommended the release of Petitioner pending deportation. (Add., Ex. A at 11-12.)

The Court finds that these allegations are a sufficiently "good showing" to shift the burden to the government to rebut this showing. The INS has already had over eight months, plus the additional 15 months since the stay of deportation, to obtain travel documents and make other arrangements for Petitioner's deportation. Accordingly, the INS is hereby directed to show that Petitioner's removal in the foreseeable future is likely. If the INS cannot rebut Petitioner's showing of the unlikelihood of removal within 30 days of the filing of this Order, then Petitioner must be released . . .

IV. Availability of Bond

Petitioner further contends that he should be released on bond pending the disposition of his habeas petition. He bases this claim on the recent Second Circuit decision in Mapp v. INS, 241 F.3d 221 (2d Cir. 2001), in which the Court held that an alien should be considered for release on bail if there is a substantial likelihood [he would] win on the merits of his habeas petition, and where he had an "extraordinary" case compared with the typical habeas case. Id. at 226.

Petitioner's reliance on Mapp is misplaced. Whereas the petitioner in Mapp was not detained under a specific statute, Petitioner Lewis was detained pursuant to a specific statutory provision authorizing the Attorney General to detain any alien who is deemed to be a danger to the community or a flight risk. See 28 U.S.C. § 1231(a)(6) (2002) or INA § 241. Moreover, in Mapp, the petitioner was convicted pursuant to guilty pleas entered seven years before the passage of the IIRIRA, and there was a substantial likelihood that he would prevail on his habeas petition for a 212(c) hearing. The instant petition is not so extraordinary. The circumstances of Petitioner's case have become increasingly common since the passage of the AEDPA and the IIRIRA. At any rate, the majority of the petition for relief is hereby denied on its merits. Accordingly, Petitioner's request for a bail hearing is denied.

V. Derivative Citizenship Claim

Petitioner farther contends that the government should accord him derivative citizenship on the basis of his mother's naturalization. She initiated her naturalization process in 1991. Petitioners request fails for two reasons. First, her application was not fully processed until 2001, and citizenship may not be confirmed until the naturalization process is complete. See United States v. Ginsberg, 243 U.S. 472, 475 (1917) ("No alien has the slightest right to naturalization unless all statutory requirements are complied with."). Secondly, even if her naturalization were to date back to the beginning of her application process, Petitioner was already eighteen when his mother filed her naturalization documents. Derivative citizenship is only available to the children of applicants when those children are under the age of 18 when the parents are naturalized. See 8 U.S.C § 1432(a)(3)(1988). Thus, his claim of derivative citizenship fails.

CONCLUSION

For the foregoing reasons, Petitioner's application for a writ of habeas corpus challenging his final order of removal is denied, to the extent that he seeks relief under § 212(c) of the INA and claims derivative citizenship. Petitioner's request to be released on bond is denied. To the extent that Petitioner claims that he is being indefinitely detained contrary to Zadvydas v. Davis, the Court directs the INS to rebut Petitioner's showing that the likelihood of removal is too removed to justify continued detention. In the event the government cannot rebut this showing within 30 days of this Order, Petitioner must be released pending deportation.