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February 27, 1997

ENGIN YESIL, Petitioner, against JANET RENO, Attorney General, et al., Respondents.

The opinion of the court was delivered by: CHIN


 Petitioner Engin Yesil ("Yesil") would seem to be such an individual. Although he made a serious mistake by aiding and abetting the distribution of cocaine in 1987, he would seem to be deserving of the second chance contemplated by section 212(c) because he has more than paid his debt to society. He acknowledged his wrongdoing, pled guilty, and served his sentence. At great risk to his life and safety, he cooperated with law enforcement authorities and infiltrated a cocaine and heroin organization. His efforts led to a number of arrests and the seizure of kilograms of drugs. He has also led a productive life in the United States. He has family and strong ties here. He started a company in Florida that evolved into a thriving business with some 250 employees. He has been in the country now for approximately 18 years -- including almost ten years as a lawful permanent resident.

 Notwithstanding these compelling circumstances, Yesil was not even considered for a waiver of deportation under section 212(c) because, in the deportation proceedings below, the Immigration Judge (the "IJ") and the Board of Immigration Appeals (the "BIA") declared him ineligible, applying reasoning that the Second Circuit rejected some 20 years ago. Consequently, Yesil filed the present petition for a writ of habeas corpus, seeking relief from the BIA's final decision ordering him deported.

 The Government opposes the petition with a veritable arsenal of procedural, jurisdictional, and substantive defenses, including lack of personal jurisdiction, the abuse of writ doctrine, and lack of subject matter jurisdiction. With inexplicable fervor, the Government contends on the merits that Yesil's petition is "frivolous" -- even though there is Second Circuit law squarely supporting his position, and even though one member of the BIA dissented from the decision below. Moreover, relying on the recently enacted Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (the "AEDPA"), the Government argues that Yesil may be stripped, without any opportunity for judicial review, of his fundamental right to remain in this country. Indeed, the Government maintains that legal permanent residents with long-standing ties to the United States may be deported without any right to seek judicial relief or intervention -- even if the deportation order is based on an erroneous interpretation of the law.

 Yesil's petition is far from frivolous. Indeed, the Government's arguments are rejected and the petition is granted, as set forth below.


 A. Statutory Background

1. Section 212(c)

 Under the INA, aliens convicted of certain criminal offenses, including "aggravated felon[ies]" and certain drug offenses, are "deportable" and "shall, upon the order of the Attorney General, be deported." INA § 241(a)(2), 8 U.S.C. § 1251(a)(2). Section 212(c) of the INA gives the Attorney General the discretion to waive deportation for lawful permanent residents who have had "lawful unrelinquished domicile" in the United States for "seven consecutive years." *fn1" 8 U.S.C. § 1182(c). Section 212(c), which has been described by the Second Circuit as a "humane provision," was enacted by Congress "to provide the Attorney General the flexibility and discretion to permit worthy aliens to continue their relationships with family members in the United States despite a ground for exclusion." Lok v. INS, 548 F.2d 37, 39 (2d Cir. 1977) ("Lok]I").

 2. The AEDPA

 On April 24, 1996, the first anniversary of the Oklahoma City bombing, President Clinton signed into law the AEDPA. Title IV of the AEDPA amends certain provisions of the INA that govern deportation of "alien terrorists" and other aliens convicted of certain criminal offenses.

 Section 106 of the INA is entitled "Judicial review of orders of deportation and exclusion, and special exclusion." 8 U.S.C. § 1105a. Subsection (a) provides that

the procedure prescribed by, and all the provisions of chapter 158 of Title 28 shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States [convicted of aggravated felonies], except that . . . .

 8 U.S.C. § 1105a(a). Subsection (a) then lists ten sub-subsections, 8 U.S.C. § 1105a(a)(1) to (10), that constitute exceptions to the proviso that the procedures of chapter 158 of Title 28 of the United States Code govern. Chapter 158 sets forth the procedure for obtaining judicial review of final orders of federal agencies, namely, the filing of a petition to review in the appropriate court of appeals. 28 U.S.C. §§ 2342, 2344.

 Prior to enactment of the AEDPA, sub-subsection (10) of section 106(a) provided as follows:

 (10) Habeas corpus

any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings.

 Section 401(e) of the AEDPA struck that language and section 440(a) provided for a new section 106(a)(10):

(10) Any final order of deportation against an alien who is deportable by reason of having committed [certain crimes, including aggravated felonies and controlled substance offenses] shall not be subject to review by any court.

 8 U.S.C. § 1105a(a)(10). Hence, the provision permitting judicial review of deportation orders by a petition for writ of habeas corpus was eliminated and replaced by a provision barring review "by any court" of final deportation orders issued against aliens convicted of certain crimes.

 3. Section 2241

 Section 2241 of Title 28 of the United States Code provides in part as follows:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. . . . .
(c) The writ of habeas corpus shall not extend to a prisoner unless . . . he is in custody in violation of the Constitution or laws or treaties of the United States . . . .

 28 U.S.C. §§ 2241(a), (c)(3). The AEDPA did not expressly purport to modify section 2241.

 B. The Facts

 Yesil is a 35-year old native of Turkey who resides in New York City, within the Southern District of New York. (Pet. Mem. at 3; see R. 234, 262, 268). *fn2" He entered the United States on a student visa in 1979, when he was 16 years old. (R. 286, 289). On August 21, 1987, he married a United States citizen (R. 105), and on November 17, 1987, he applied for status as a lawful permanent resident on the basis of that marriage. (R. 108-10). His application was granted on March 25, 1988. (R. 114).

 Unfortunately, however, Yesil became involved in the illegal distribution of drugs in or about April 1987. (Return, Exh. 2). He was indicted in the United States District Court for the Middle District of Florida in March 1990 for conspiracy to distribute cocaine. (R. 241-49). Following a plea of guilty, Yesil was convicted in November 1990 of aiding and abetting the distribution of one kilogram of cocaine. (R. 240, 250; see Return, Exh. 2). He was sentenced to a six-year term of imprisonment, a three-year term of special parole, and fined $ 150,000. (Id.).

 Yesil began cooperating with law enforcement authorities after he was indicted. (R. 116, 124). The Broward County Sheriff's Office, the State Attorney's Office for the 17th Judicial Circuit of Florida, the Fort Lauderdale Police Department, the Federal Bureau of Investigation, and the United States Attorney for the Middle District of Florida have acknowledged his cooperation and "valuable assistance." (R. 115-31). His efforts, which included working undercover and making "headway in infiltrating" a cocaine and heroin organization, helped lead to "many arrests and multi-kilogram drug confiscations." (R. 116, 118, 124-25; see also R. 131). The United States Attorney for the Middle District of Florida personally wrote a letter attesting to Yesil's "significant cooperation." (R. 130-31). Moreover, "the bulk of [Yesil's] cooperation occurred subsequent to [his] sentence and [was] unrewarded cooperation." (R. 133). *fn3"

 In July 1986, Yesil founded a contact lens and eyewear company in Florida called Lens Express. (R. 95, 135, 137; compare R. 140 (listing Lens Express as an employer), 283 (same)). It eventually became a "very successful venture" that employed some 250 people. (R. 135). Yesil recently sold the company and started a new business, which employs 25 American workers and uses the services of some 1,600 sales representatives. (Pet. Mem. at 5). *fn4"

 C. The Initial Deportation Proceedings

 As Yesil was completing his term of imprisonment at the Federal Correctional Institution in Oakdale, Louisiana, INS commenced deportation proceedings against him based on his 1990 drug conviction. Consequently, he was continued in custody for some four or five months in connection with the deportation proceedings. On January 5, 1994, INS served an order to show cause and notice of hearing on him at Oakdale. (R. 359-65). The order to show cause, which charged Yesil with being deportable pursuant to section 241(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1251(a)(2)(A)(iii), on the basis of his conviction for an "aggravated felony," was filed with the Office of the Immigration Judge of the Executive Office for Immigration Review in Oakdale on January 21, 1994. (R. 358-65).

 The IJ held several hearings, both in person and by telephone. (R. 208-39). Yesil moved to change venue of the deportation proceedings from Louisiana to New York, but the motion was denied because the IJ wanted to resolve the issue of deportability first. (R. 218-23, 237, 341 ("The court will consider a Change of Venue after Deportation has been resolved and only if the alien is eligible for relief from Deportation.")). On April 12, 1994, Yesil was released from custody on a $ 20,000 bond. (R. 351, 353). He returned to New York City, where he and family members resided and where he was serving his term of special parole under the supervision of the United States Probation Office. (R. 337-38, 348).

 On August 31, 1994, the IJ issued a written decision denying petitioner's motion to change venue and ordering him deported from the United States. (R. 204-07). He held that an alien was required to be a lawful permanent resident for seven years before being eligible for a waiver pursuant to section 212(c). (R. 206). Although he noted the existence of Second Circuit law to the contrary, the IJ concluded that he was not bound by Second Circuit law. (Id.). The IJ wrote:

In cases arising outside of the second circuit, i.e., the instant case, it is well-settled that in order to be eligible to receive a § 212(c) waiver, an alien must have been an LPR for at least seven years and any time spent in the U.S. in an immigration status besides that of a permanent resident, cannot be applied towards the seven year requirement. . . . Under the authority of the BIA (which is controlling in the present case), the time that [Yesil] spent in the U.S. in student status cannot be tacked onto the time which he has been an LPR to meet the seven year domicile requirement. Since [Yesil] has not been an LPR for at least seven year[s], he is statutorily ineligible to apply for a waiver of inadmissibility under § 212(c) of the [INA] . . . .

 (R. 206 (citations omitted)). The IJ also denied the request for a change of venue again, on the basis that Yesil was ineligible to apply for a section 212(c) waiver. (R. 207).

 On September 9, 1994, Yesil appealed to the BIA. (R. 199-201). In addition, on November 23, 1994, seven years and six days after he had applied for lawful permanent resident status, Yesil filed a formal application for a section 212(c) waiver. (R. 140-44). At approximately the same time, he filed a "Motion to Reopen" the deportation proceedings. (R. 178-86).

 On March 17, 1995, in a written decision, the BIA dismissed Yesil's appeal and denied his motion to reopen the proceedings. (R. 145-52). The BIA held that time prior to the granting of lawful permanent resident status could not be counted toward an ...

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