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August 2, 1999


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.

Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997), a closely related case decided two years ago, held that AEDPA's restrictions on section 212(c) relief could not retroactively be applied to lawful permanent residents who had been convicted and placed in deportation proceedings prior to AEDPA's enactment. The court of appeals for the Second Circuit affirmed. See Henderson v. I.N.S., 157 F.3d 106 (2d Cir. 1998). It held that Congress had not designed section 440(d) to apply to persons whose deportation proceedings were pending at the time AEDPA was signed into law. The court expressly declined in Henderson to reach the question now squarely presented by the Maria and Pottinger cases, in both of which deportation proceedings were commenced after AEDPA's adoption: section 440(d)'s applicability to pre-enactment criminal conduct and convictions. In a forthcoming opinion, the reason why Mr. Maria is entitled to the same relief as the Mojica petitioners will be explicated. This memorandum deals with Mr. Pottinger's entitlement to such 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 212(c) relief.

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. Maria's petition.

The operative event in Pottinger and Maria, as well as in Mojica and Henderson, was the commission of the crime — the last wrongful act of the petitioner. In each of these cases, that event 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 ...

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