occurred prior to AEDPA's enactment. The time of the conviction and the
time deportation proceedings were commenced were happenstance.
B. Mr. Pottinger's Situation
Mr. Pottinger is a twenty-year old native and citizen of Great
Britain. He was admitted to the United States on April 9, 1981 at the age
of three. With the exception of a trip to England for a funeral that same
year, he has lived in the United States continuously since his
admission. His entire family, including his maternal grandparents, his
mother and brother and his extended family of numerous aunts, uncles, and
cousins, resides in the United States. At the time of his arrest, he
lived in Jamaica, New York; he now lives in Hempstead, N.Y. Both are in
the Eastern District of New York.
On December 18, 1995, Mr. Pottinger pled guilty to an attempted
criminal sale of a controlled substance in the third degree. See N.Y.
Penal Law §§ 110 and 220.39 (covering attempted sale of any weight of
"narcotic drug" no matter how minute). On March 1, 1996, he was sentenced
to six months in jail. He was released less than four and a half months
later, on July 12, 1996. It is assumed that Mr. Pottinger committed the
act to which he pled guilty, even though it is common knowledge that the
draconian Rockefeller drug laws of New York place enormous pressures on a
defendant — whether guilty or not — to plead guilty to a
lesser crime in order to avoid a long prison term.
At the time of Mr. Pottinger's criminal act and of his guilty plea, he
was eligible for relief under section 212(c) of the INA because the
restrictive provisions of AEDPA had not yet been adopted.
On April 24, 1996, as noted, AEDPA was signed into law, barring 212(c)
relief for aliens "deportable by reason of having committed any criminal
offense covered in section 241(a)(2)(A)(iii) or (B) . . ." AEDPA §
440(d)(2), 110 Stat. at 1277. The crime to which Mr. Pottinger had
earlier pled guilty was included among the covered crimes.
On June 14, 1996, INs issued an Order to Show Cause charging Mr.
Pottinger with deportability under INA section 241(a)(2)(B)(I) because of
his conviction of a controlled substance violation, and INA section
241(a)(2)(A)(iii) for conviction of an aggravated felony. On June 27,
Soriano was decided, holding that a section 212(c) humanitarian hearing
was unavailable to people in Mr. Pottinger's position.
When, on July 12, 1996, Mr. Pottinger was released by the state, he was
immediately taken into custody by INS He was held for three weeks without
bond in Manhattan at INS's Varick Street facility before being
transferred to its Oakdale, Louisiana installation on August 2, 1996.
On August 5, 1996, Mr. Pottinger appeared pro se at a bond
redetermination hearing. The immigration judge denied him bond,
explaining in a later written decision that bond was precluded by AEDPA
section 440(c), which amended the INA to prohibit release on bond of
aliens convicted of an aggravated felony.
Three weeks later, on August 23, 1996, Mr. Pottinger again appeared
before an immigration judge. Now represented by counsel, he admitted
deportability and requested a waiver of deportation under section
212(c). The immigration judge found him ineligible for 212(c) relief
because he had not sought it prior to the date of AEDPA's enactment. He
ordered Mr. Pottinger deported to the United Kingdom. On September 3,
1996, Mr. Pottinger appealed this decision to the BIA.
IIRIRA was signed into law on September 30, 1996. The statute's interim
rules provided for the release of aliens such as Mr. Pottinger, who were
being held without bond under AEDPA section 440(c). Accordingly, Mr.
Pottinger requested a second bond redetermination hearing. At the
hearing, on Dec. 23, 1996, bond was set at $12,000. Mr. Pottinger was
January 22, 1997 and returned home to Hempstead, New York.
In February, 1997, the Attorney General issued her opinion explaining
the September 12th vacatur of the BIA's Soriano decision. It stated, as
already explained, her summary and unsupported conclusion that section
440(d) applied to all proceedings pending at the time of AEDPA's
enactment. This harsh decision of the Attorney General has repeatedly
been rejected by the courts. See, e.g., Henderson, 157 F.3d at 128-30;
Mojica, 970 F. Supp. at 168-82; Goncalves v. Reno, 144 F.3d 110, 126-33
(1st Cir. 1998); Mayers v. INS, 175 F.3d 1289, 1301-04 (11th Cir. 1999);
Sandoval v. Reno, 166 F.3d 225, 239-42 (3d Cir. 1999).
On April 15, 1997, the BIA, having determined — as ordered by the
Attorney General — that section 440(d)'s bar to relief applied to
Mr. Pottinger, dismissed his appeal. On April 24, 1997, it issued a
"Notice to Deliver Alien" directing Mr. Pottinger to surrender for
deportation. Mr. Pottinger surrendered to the INS facility in Oakdale,
Louisiana on May 27, 1997? three days before this court decided Mojica.
With the exception of the fact that Mr. Pottinger's deportation
proceedings were commenced post-AEDPA, his circumstances are, for legal
purposes, factually identical to those of Mr. Mojica. Both were convicted
of deportable offenses prior to AEDPA's enactment. Both were initially
taken into custody in New York and held at the Varrick Street facility.
They were then transferred to Oakdale without having seen an immigration
judge and ordered deported. Released on bond, both returned to their
homes in the Eastern District of New York, where they received surrender
orders from the New Orleans District Director. Both traveled under
compulsion of the New Orleans District Director's surrender order from
New York to Oakdale.
III. HISTORICAL, CONSTITUTIONAL
AND INTERNATIONAL LAW
The historical, constitutional and international law principles which
require the courts to assume that Congress acted rationally and by design
in forbearing from the retroactive punishment of people like petitioners
Mojica, Navas, Henderson, Maria and Pottinger have been treated in the
Mojica memorandum. See Mojica, 970 F. Supp. at 142-52, 169-71. See also
Maria, No. 98 CV 3287 (E.D.N.Y. Aug. 27, 1999).