The opinion of the court was delivered by: Weinstein, Senior District Judge.
Petitioner brings a case of first impression raising some of the same
substantive issues as Maria v. McElroy, 98 CV 3287 (E.D.N.Y.Aug. 27,
1999). This memorandum is intended to be considered together with the one
in Maria and that in Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997),
affid sub nom. Henderson v. I.N.S., 157 F.3d 106 (2d Cir. 1998), cert.
denied sub nom. Navas v. Reno, ___ U.S. ___, 119 S.Ct. 1141, 143 L.Ed.2d
209 (1999). For the convenience of the reader, there is some repetition
among these memoranda. All deny retroactivity to the recently enacted
provisions prohibiting those deportable due to conviction of one of a
number of specified crimes from applying for humanitarian relief from
deportation. For purposes of their eligibility for such relief,
petitioners in all these cases should be treated as if the laws governing
their rights were those in effect at the time they committed the crimes
for which the government now seeks to deport them. Those laws afforded
this petitioner, Junior Earl Pottinger, a right to a humanitarian hearing
to avoid deportation.
Mr. Pottinger is a lawful permanent resident who has lived continuously
in the United States with his family since childhood. He was admitted at
age three and was raised and developed into young adulthood here. He was
placed in deportation proceedings after entering a guilty plea for
attempted sale of a controlled substance.
Prior to the enactment of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, section 212(c)
of the Immigration and Naturalization Act entitled long time legal
residents like Mr. Pottinger (with the exception of those convicted of a
small number of particularly serious crimes and sentenced to a minimum of
five years in prison) to a hearing before an immigration judge empowered
to grant discretionary waivers of deportation based on equitable
humanitarian considerations. Section 440(d) of AEDPA altered this
established practice by barring lawful permanent residents convicted of
any of a multiplicity of offenses from applying for this form of relief,
traditionally referred to as section 212(c) relief.
In this case, as in Mojica, the temporal reach of AEDPA section 440(d)
is determined on the basis of standard statutory interpretation as
further informed by constitutional and international human rights
principles. Because the same fundamental principles of statutory
construction, deep constitutional values, national traditions and
international obligations relied upon in Mojica are implicated here, the
extensive analysis of these matters in that case should be deemed
expressly incorporated in this memorandom. See Mojica, 970 F. Supp. at
142-55; see also Maria, No. 98 CV 3287 (E.D.N.Y. Aug. 27, 1999).
Resolution of Mr. Pottinger's claim that AEDPA section 440(d) violates
the Equal Protection Clause by impermissibly discriminating between
deportable and excludable aliens, denying section 212(c) relief only to
the former group, is unnecessary to the disposition of this case.
A. AEDPA's Restrictions on Section 212(c)
Discretionary Relief from Deportation
Mr. Pottinger challenges a BIA ruling finding him ineligible for
section 212(c) relief under AEDPA section 440(d). The nature and history
of section 212(c) relief is set forth in detail in Mojica. See 970 F.
Supp. at 136-38. The salient points of this discussion are reviewed and
supplemented here and in the Maria opinion for convenience.
The right of a long term lawful permanent resident convicted of a
deportable offense to apply for relief from deportation was conclusively
established over four decades ago by the Immigration and Nationality Act
of 1952(INA), Pub.L. No. 82-414, 55 Stat. 163. Its origins may be traced
to Section 3 of the Seventh Proviso of the Immigration Act of 1917. See
Francis v. I.N.S., 532 F.2d 268, 270 (2d Cir. 1976); Goncalves v. Reno,
144 F.3d 110, 128 (1st Cir. 1998), cert. denied sub nom. Reno v. Pereira
Goncalves, ___ U.S. ___, 119 S.Ct. 1140, 143 L.Ed.2d 208 (1999) (same).
The INA comprehensively revised and recodified prior immigration
statutes, substantially expanding the grounds for deportation and
exclusion. See Craig H. Feldman, Note, The Immigration Act of 1990:
Congress Continues to Aggravate the Criminal Alien, 17 Seton Hall Legis.
J. 201, 203 & n.14 (1993).
In order to mitigate the severity of the new law, Congress created a
form of discretionary relief from deportation for permanent residents
with "a lawful unrelinquished domicile of seven consecutive years in the
United States." INA § 212(c), 8 U.S.C. § 1182(c)(1994) (repealed
1996). See Anjali Parekh Prakash, Note, Changing the Rules: Arguing
Against Retroactive Application of Deportation Statutes 72 N.Y.U. L.Rev.
1420, 1428 (1997) (citing Dan Kesselbrenner & Lory D. Rosenberg,
Immigration Law and Crimes § 11.1, at 11-2 (1994)).
Though facially limited to exclusion proceedings, a series of judicial
decisions interpreted section 212(c) as applicable to deportation
proceedings as well. See, e.g., Francis v. I.N.S., 532 F.2d 268 (2d Cir.
1976) (resident aliens in both exclusion and deportation proceedings
eligible for 212(c) relief); Matter of Silva, 1976 WL 32326, 16 I.& N.
Dec. 26 (BIA 1976) (applying Francis nationwide).
Prior to the enactment of AEDPA in 1996, the only lawful permanent
residents barred from applying for a 212(c) waiver were those who had
served five or more years in prison in connection with an "aggravated
felony" conviction. See Immigration Act of 1990, Pub.L. No. 101-649,
§ 511(a), 104 Stat. 4978, 5052, amended by the Miscellaneous and
Technical Immigration and Naturalization Amendments of 1991, Pub.L. No.
102-232, § 306(a)(10), 105 Stat. 1733, 1751 (imposing limitation on
§ 212(c) relief). Outside this narrow exception,
A long-term permanent resident accused of any crime triggering
deportability could . . . be assured that, even if he or she pled guilty
or was convicted in criminal proceedings after the trial, there would be
available a waiver of deportation in subsequent deportation proceedings
before an Immigration Judge. The Immigration Judge's decision to grant
the waiver depends upon a weighing of many factors. Among the favorable
elements considered by the Immigration Judge under section 212(c) are
family ties within the United States, residence of long duration in this
country (particularly when the inception of residence occurred at a young
age), evidence of hardship to the individual and family if deportation
were to occur, service in this country's armed forces, a history of
employment, existence of property or business ties, evidence of value and
service to the community, proof of rehabilitation, and other evidence
attesting to an individual's good character and likelihood of future
positive contributions to American society.
Mojica, 970 F. Supp. at 137 (citations omitted); see also Lovell v.
I.N.S., 52 F.3d 458, 461 (2d Cir. 1995) (listing 212(c) factors); Matter
of Marin, 16 I.& N. Dec. 581, 584-85 (BIA 1978) (same). Some fifty
percent of those seeking a 212(c) waiver were granted relief. See Mojica,
970 F. Supp. at 178 (citing U.S. Department of Justice Executive Office
for Immigration Review Statistical Sheet 1, Jan. 19, 1995). Long term
residents convicted of a minor offense may have been even more likely to
receive a waiver.
The enactment of AEDPA on April 24, 1996 dramatically changed this
scenario by precluding 212(c) relief for persons rendered deportable by
conviction of an offense falling within one of a number of broad
categories of crimes, among them "aggravated felonies" and drug
offenses. AEDPA § 440(d), 110 Stat. at 1277. See generally Mojica,
970 F. Supp. at 137, Anjali Prakesh, supra, at 1431-33. Section 440(d),
if applicable to Mr. Pottinger, would bar him from applying for section
On September 30, 1996, the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) was enacted. Pub.L. No. 104-208, 110
Stat. 3009. IIRIRA repealed section 212(c) and provided in its place a
new equivalent form of relief from deportation called "Cancellation of
Removal." IIRIRA § 304, 110 Stat. at 594-96 (codified at
8 U.S.C. § 1229(b). Because IIRIRA generally does not apply to
deportation proceedings initiated before April 1, 1997, this new
provision has no application to Mr. Pottinger. See IIRIRA § 309(c),
110 Stat. 3009-625, as amended by Act of Oct. 11, 1997, Pub. L. 104-302,
§ 2, 110 Stat. 3656, 3657. His proceedings were commenced prior to
that date, and the Immigration and Naturalization Service
(INS) is applying AEDPA rather than IIRIRA to his case.
1. Retroactivity of Section 440(d) Following AEDPA's enactment on April
24, 1996, INS took the position that section 440(d) applied to all
deportation proceedings pending on that date. The BIA rejected this
interpretation, holding that section 440(d) could not retroactively be
applied to bar individuals whose applications pre-dated AEDPA from
receiving 212(c) relief. See Matter of Soriano, 1996 WL 426888 (beginning
at screen page 1, BIA June 26, 1996). The Attorney General vacated the
BIA's decision on September 12, 1996. A short opinion followed several
months later setting forth her conclusion that section 440(d) should be
applied to all pending 212(c) waiver cases, regardless of the application
date. See Matter of Soriano, Int. Dec. 3289, 1996 WL 426888 (beginning at
screen page 37, AG Op. Feb. 21, 1997).
In Mojica, 970 F. Supp. 130, Guillermo Mojica and Saul Navas —
two long time permanent residents whose criminal conduct and convictions
pre-dated AEDPA's enactment but whom the BIA had nonetheless held
ineligible for 212(c) relief — filed petitions for writs of habeas
corpus challenging the Attorney General's policy of retroactive
application of section 440(d). Mojica concluded that the court had
jurisdiction to review these claims under section 2241 of title 28, and
held that application of section 440(d) to the petitioners (1) could
raise due process problems since there was no independent rational basis
for retroactivity, see id. at 170-71(2) was contrary to Congress's
designation of section 440(d) as prospective only, as implied by the
contrast between that section's silence with regard to retroactivity and
the explicit retroactivity language contained in numerous other
provisions of the same title, see id. at 173, and (3) would operate
drastically to alter the legal consequences of pre-enactment events, thus
triggering the presumption against retroactivity and requiring section
440(d) to be read prospectively, see id. at 179-80. Accordingly, the
petitions were granted, the orders of deportation vacated, and the INS
ordered to adjudicate petitioners' 212(c) applications.
The court of appeals for the Second Circuit affirmed the grant of Mr.
Navas' petition, "reject[ing] the Attorney General's position and
hold[ing] that § 440(d) does not apply to cases initiated before the
date of its enactment." Henderson, 157 F.3d at 129. The court noted that
"[s]ince it is possible to decide this case on the ground that §
440(d) was not intended to apply to cases pending when the section was
enacted, we need not reach [the] broader argument that the statute should
not apply to primary conduct — i.e., criminal convictions —
that occurred prior to April 24, 1996." Id. at 128 n. 28. The court
retained jurisdiction over Mr. Mojica's case pending resolution of a
jurisdictional question it certified to the New York Court of Appeals.
See Part IV. B, supra.
2. Substantive Issues Left Open in Henderson and Mojica
Both Mr. Maria's and Mr. Pottinger's cases present the broader issue
not reached by the Henderson court, since, as already indicated, both
petitioners were placed into deportation proceedings after AEDPA's
enactment. Mr. Maria's case raises another issue left open by Mojica.
Like Mr. Mojica and Mr. Navas, Mr. Pottinger committed his crime before
AEDPA was signed into law. Unlike those petitioners, however, he pled
guilty after the statute's enactment, giving rise to the question whether
the operative event should be deemed to have preceded or post-dated
AEDPA's adoption. Neither of these distinguishing factors warrants
retroactive application of AEDPA's denial of section 212(c) relief. A
parallel opinion, as noted, deals with the specific issues raised by Mr.
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