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YESIL v. RENO

July 14, 1997

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


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 On February 27, 1997, I issued an opinion in this case granting Engin Yesil's petition for a writ of habeas corpus. Yesil v. Reno, 958 F. Supp. 828 (S.D.N.Y. 1997). I held that sections 401(e) and 440(a) of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") did not deprive the district courts of habeas corpus jurisdiction to review final orders of deportation of aliens in custody in violation of the Constitution or laws of the United States. I granted the petition because I concluded that the Board of Immigration Appeals (the "BIA") had erred in holding that Yesil was ineligible to be considered for a waiver of deportation under section 212(c) of the Immigration and Nationality Act, as amended (the "INA"), 8 U.S.C. § 1182(c), because he had not been a lawful permanent resident for seven years at the time he applied.

 On March 10, 1997, the Government moved for reconsideration of my opinion based on a decision of the Attorney General of the United States issued on February 21, 1997. Matter of Soriano, slip op. (Atty. Gen. Feb. 21, 1997). Reversing an en banc decision of the Board of Immigration Appeals (the "BIA"), Interim Decision No. 3289, 1996 WL 426888 (BIA June 27, 1996), the Attorney General held in Soriano that section 440(d) of the AEDPA applies to applications for section 212(c) relief submitted prior to April 24, 1996, the effective date of the AEDPA. Section 440(d), as amended by section 306(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208 (the "IIRIRA"), renders ineligible for section 212(c) relief aliens convicted of certain crimes, including aggravated felonies.

 The Government argues in essence that the issues addressed in my February 27, 1997 opinion are irrelevant and that, in accordance with the Attorney General's decision in Soriano, Yesil -- as a convicted aggravated felon -- is ineligible under section 440(d) for section 212(c) relief, no matter how many years he has been a lawful permanent resident, no matter how many consecutive years he has been a lawful domicile. The Government takes this position even though section 440(d) did not become law until more than two years after deportation proceedings had been commenced against Yesil, and even though Yesil would have been considered for section 212(c) relief before the AEDPA took effect had the Immigration Judge (the "IJ") and BIA not erroneously declared him ineligible on other grounds during the deportation proceedings. The Government argues that because section 440(d) renders Yesil statutorily ineligible for section 212(c) relief, Yesil cannot show a "threat of a fundamental miscarriage of justice" entitling him to habeas corpus relief.

 In its reply memorandum, the Government further argues -- in a display of sheer arrogance -- that even if I were to deny its present motion for reconsideration, the Immigration and Naturalization Service ("INS") could nonetheless proceed to deport Yesil on grounds that the Government has yet to raise. Even though the Government has moved for reconsideration on the basis of Soriano, the Government suggests in its reply memorandum that all of the issues now before me would be academic if I were to reject its arguments because -- "regardless of the Attorney General's decision in Soriano " -- INS could simply terminate the instant deportation proceedings and "reinitiate removal proceedings" against Yesil pursuant to section 309(c)(3) of the IIRIRA. (Govt. Reply Mem. at 28). Hence, the Government is suggesting that it is holding in reserve yet another card, a card that it will play if its present motion for reconsideration is denied.

 The Government's arguments are rejected. Yesil has shown a "threat of a fundamental miscarriage of justice," and I hold that section 440(d) of the AEDPA may not be lawfully applied to applications for section 212(c) relief pending when the AEDPA was signed into law. Moreover, the Government may not circumvent my rulings by now relying on section 440(d), even if it may be applied to pending cases generally, or section 309 of the IIRIRA or any other newly enacted provision of law. Yesil is entitled to a hearing on the merits on his section 212(c) application. Accordingly, the motion for reconsideration is denied in all respects.

 A. Facts and Procedural History

 The facts and procedural history are set forth in detail in my February 27, 1997 opinion and will not be repeated here.

 In my February 27th opinion, I held that this Court had personal jurisdiction over the district director of INS in Louisiana, that the abuse of writ doctrine was not a bar to Yesil's seeking relief in these proceedings, that sections 401(e) and 440(a) of the AEDPA did not deprive the district courts of subject matter jurisdiction to entertain challenges to final deportation orders brought by petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2241, and that the IJ and BIA had erred in holding that Yesil was not eligible to be considered for section 212(c) relief because he had not been a lawful permanent resident for seven years. In the latter respect, I held that Yesil was eligible to be considered because he had been lawfully domiciled in the United States for seven continuous years and was a lawful permanent resident at the time of his application.

 The issues raised by the present motion for reconsideration were not reached in my February 27th opinion because, as the Government stated at page 43, footnote 15 of its January 30, 1997 memorandum of law in opposition to the petition, the Attorney General was still then "considering whether to apply AEDPA § 440(d) to 212(c) applications filed before April 24, 1996."

 The Attorney General decided that question when she issued her opinion in Soriano on February 21, 1997, six days prior to the issuance of my opinion in this case. The United States Attorney's Office for the Southern District of New York, however, did not learn of the Attorney General's decision until March 3, 1997. The Government filed the instant motion for reconsideration on March 10, 1997.

 B. Section 440(d)

 The AEDPA was signed into law by the President on April 24, 1996. Section 440(d) of the AEDPA amended section 212(c) of the INA, a long-standing "humane provision" of law that gave lawful permanent residents the right to seek relief if they became subject to deportation because they were convicted of a crime. Lok v. INS, 548 F.2d 37, 39 (2d Cir. 1977). In applying for a section 212(c) waiver, a lawful permanent resident could point to factors such as ties to the United States, the effect of deportation on the individual's family, proof of rehabilitation, service to the community, and other evidence of good character.

 Section 440(d) sharply limited section 212(c) by barring relief for individuals who were deportable because they had committed certain categories of offenses, *fn1" including: (1) an aggravated felony; (2) a controlled substance violation; (3) a firearm offense; (4) one of various miscellaneous crimes; or (5) two or more crimes involving "moral turpitude." Hence, lawful permanent residents convicted of one of these offenses were no longer eligible for section 212(c) relief, no matter how many years they had been lawfully domiciled in this country. *fn2"

 Section 440(d) is silent as to whether it applied to pending cases. INS took the position, however, that section 440(d) applied to all deportation cases pending when the AEDPA took effect, as well as, of course, to deportation cases subsequently commenced. This set the stage for the resolution of the issue in Matter of Soriano.

 C. Soriano

 1. The BIA's Decision

 Bartolome Jhonny Soriano arrived in the United States as a lawful permanent resident in March 1985. In May 1992, he was convicted of attempted criminal sale of a controlled substance. On the basis of that conviction, INS commenced deportation proceedings against him. During the course of the proceedings, Soriano applied for section 212(c) relief. In October 1995 the IJ found that Soriano was eligible for section 212(c) relief, but denied the application in the exercise of his discretion.

 Soriano appealed to the BIA. Thereafter, while the appeal was pending, the AEDPA became law. Although Soriano had been eligible for section 212(c) relief when he requested the waiver, under section 440(d) he would no longer be eligible because his conviction fell within one of the categories covered by section 440(d). INS took the position before the BIA that section 440(d) applied to pending applications and thus it argued that Soriano was barred from seeking section 212(c) relief.

 The six-member majority disagreed. First it concluded, however, that Congress did not expressly provide for an effective date for section 440(d). Matter of Soriano, Interim Decision No. 3289, 1996 WL 426888 (BIA June 27, 1996) (hereafter cited as "Int. Dec."). Because Congress had expressly provided for a delayed effective date for other provisions of the AEDPA, the majority held that Congress had intended that section 440(d) be applied immediately upon enactment of the AEDPA, including as a general matter to aliens already in deportation proceedings at the time. (Int. Dec. at 4-5).

 The next question addressed by the majority was whether section 440(d) applied to aliens already in deportation proceedings who had applications for section 212(c) relief pending on April 24, 1996. The majority determined that Congress had not intended for section 440(d) to apply to pending applications. The majority relied on the fact that section 413 of the AEDPA, which barred alien terrorists from seeking most forms of relief from deportation, expressly provided that it applied to "applications filed before, on, or after" the effective date of the AEDPA, so long as "final action" had not been taken. AEDPA § 413(g). The majority concluded that the presence of this language in section 413(g) together with the absence of comparable language in section 440(d) showed that Congress had not intended for section 440(d) to apply to applications filed before the AEDPA was enacted. (Int. Dec. at 6-7).

 The majority also drew support from the Supreme Court's admonition in Landgraf v. USI Film Products, 511 U.S. 244, 265, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), that "settled expectations should not be lightly disrupted." The majority held that "by applying section 440(d) of the AEDPA to only those applications for section 212(c) relief filed on or after the date of enactment of the AEDPA, the unique expectations of aliens whose applications for section 212(c) relief were pending prior to the enactment of the AEDPA are not disrupted." (Int. Dec. at 7). The majority concluded that these aliens had the "expectation that although they were deportable under various provisions of the [INA], they would be able to present evidence of favorable social and humane considerations that might countervail evidence of their undesirability as lawful permanent residents." (Id.).

 Finally, on the merits of the appeal, the majority concluded that the IJ had properly exercised his discretion in denying Soriano's application for section 212(c) relief. (Int. Dec. at 8-9).

 One member of the BIA concurred in part and dissented in part. Board Member Lory D. Rosenberg concurred in the majority's holding that section 440(d) was not applicable to pending applications for section 212(c) relief. She dissented, however, from the majority's conclusion that section 440(d) could otherwise be applied to deportation proceedings commenced before April 24, 1996, where the alien had not yet applied for section 212(c) relief. (Int. Dec. at 10, 12, 20).

 The five dissenting members disagreed with the majority's conclusion that section 440(d) applied to pending applications. The dissent was of the view that a section 212(c) application is an "ongoing application" and that an applicant for such relief had to qualify under the law in existence "at the time the application is finally considered." (Int. Dec. at 22). The dissent also concluded that "like injunctive relief, relief from deportation under section 212(c) of the [INA] is prospective in nature." (Id. at 23). Hence, the dissent was of the view that section 440(d) did not operate "retroactively." (Id. at 22-23). The dissent also held that "applying ...


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