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October 7, 1999


The opinion of the court was delivered by: Weinstein, Senior District Judge.



     A.  Treatment of "Aggravated Felons" Under the Immigration
         1.  "Aggravated Felony" Definition
         2.  Immigration Consequences of Conviction of an
             "Aggravated Felony"
     B.  Discretionary Relief from Deportation
         1.  Section 212(c) Relief
         2.  Section 212(h) Relief
     C.  Eddy Maria's Situation


     A.  Jurisdiction to Issue a Writ of Habeas Corpus
     B.  Exhaustion of Administrative Remedies
     C.  IIRIRA's "Aggravated Felony" Amendments Render
         Mr. Maria Deportable
         1.  Statutory Design
             a.  Temporal Reach of "Aggravated Felony" Definitions
                 from the ADAA to IIRIRA
             b.  Temporal Reach of IIRIRA Section 321
         2.  The Constitution Does Not Prevent Application of
             Section 321 to Render Mr. Maria Deportable
             a.  Due Process Clause
             b.  Ex Post Facto Clause
     D.  AEDPA's Restrictions on Section 212(c) Relief Do Not Apply
         to Acts Before Enactment
         1.  Statutory Language Does Not Support Retroactivity
         2.  Ambiguity Does Not Support Retroactivity
         3.  Rule of Lenity
         4.  Avoidance of Constitutional Issues Supports
             a.  Due Process Clause
             b.  Ex Post Facto Clause
         5.  International Law
             a.  The International Covenant of Civil and Political
             b.  Customary International Law
     E.  IIRIRA's Restrictions on Family Hardship Relief


In support of his petition for a writ of habeas corpus and his complaint for declaratory and injunctive relief with a stay of deportation, petitioner Eddy Maria challenges the decision of the Board of Immigration Appeals (BIA) finding him (1) deportable as an "aggravated felon" and (2) ineligible for any relief from deportation on humanitarian grounds under section 212(h) and former section 212(c) of the Immigration and Nationality Act (INA).

The decision of the BIA was based on provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009. Both Acts were adopted after Mr. Maria committed the offense for which the Immigration. and Naturalization Service (INS) seeks to deport him. Mr. Maria challenges the applicability of AEDPA and IIRIRA to his case on both statutory and constitutional grounds. For the reasons indicated below, he is entitled only to partial relief: he is deportable, but he is eligible for a humanitarian hearing determining whether he should be permitted to remain in the United States.


A. Treatment of "Aggravated Felons" Under the Immigration Laws

1. "Aggravated Felony" Definition

The parties do not dispute that under the law in effect at the time petitioner pled guilty to attempted unarmed robbery and was sentenced to two to four years in prison, he was not deportable as an "aggravated felon" because he received a sentence of under five years. The government contends, however, that Mr. Maria was rendered deportable by the enactment of IIRIRA several months after his guilty plea. IIRIRA lowered the sentence necessary for a theft or burglary offense to be considered an "aggravated felony" from five years to one year.

"Aggravated felony" is a congressionally-created term which entered the legal lexicon via the Anti-Drug Abuse Act of 1988 (ADAA), a comprehensive drug enforcement statute which included a number of provisions concerning criminal aliens. See ADAA, Pub.L. No. 101-690, 102 Stat. 4181. Its evolution from a term comprising a small number of extremely serious crimes into one encompassing a broad array of offenses has taken place in a number of stages. The ADAA defined as "aggravated felonies" murder, drug trafficking, illicit trafficking in firearms or destructive devices and any attempt or conspiracy to commit such acts within the United States. Id. § 7342, 102 Stat, at 4469-70. It made conviction of such an offense a basis for deportation. Id. § 7344, 102 Stat, at 4470-71.

Since the ADDA's passage, successive immigration statutes have built on its "aggravated felony" definition, progressively expanding the term to cover a wide variety of offenses. One commentator has observed:

  The definition of aggravated felony at INA §
  10l(a)(43), 8 U.S.C. § 1101(a)(43), began as one
  paragraph in 1988. Eight years later the provision
  consists of twenty-one paragraphs labeled (A) through
  (U). In 1988 the statute identified three general
  crimes. Today over fifty crimes or general classes of
  crimes are enumerated. The amount of loss, maximum
  possible penalty for the crime and actual sentence
  imposed, regardless of any suspension or probation of
  that sentence, are the current mechanisms to qualify
  crimes as aggravated felonies.

The Immigration Act of 1990 (IMMACT) added money laundering, crimes of violence, and additional grounds of controlled substance trafficking to the list of "aggravated felonies." See IMMACT, Pub.L. No. 101-649, § 501(a)(2), (3), 104 Stat. 4978, 5048. IMMACT also made the "aggravated felony" definition applicable to both federal and state convictions as well as to convictions under analogous foreign laws in certain circumstances. See id. § 501(a)(5), (6), 104 Stat. at 5048.

A plethora of new offenses were denominated "aggravated felonies" by the Immigration and Technical Corrections Act of 1994 (INTCA), Pub.L. No. 103-416, 108 Stat. 4320. These included theft and burglary offenses for which a sentence of at least five years was imposed, kidnapping for ransom, child pornography, RICO violations punishable by a minimum of five years, management of a prostitution business, slavery, espionage, sabotage and treason, fraud or tax evasion involving the loss of more than $200,000, alien smuggling for commercial gain, document fraud where the sentence imposed was at least five years, and failure to appear for service of sentence of a crime punishable by fifteen years or more. See id. § 222(a), 108 Stat. at 4320-22.

In 1996, AEDPA broadened the scope of the definition still further. It redefined previously designated "aggravated felonies," for example, by replacing the alien smuggling ground's commercial gain requirement with the imposition of a five-year sentence and by decreasing by two-thirds the number of years by which a crime must be punishable for failure to appear for service of sentence to constitute an "aggravated felony." AEDPA § 440(e)(3), 110 Stat. 1214, 1277. It also added to the "aggravated felony" roster obstruction of justice, perjury and subornation of perjury, bribery of a witness and failure to appear to answer a felony charge punishable by two or more years, AEDPA § 440(e)(8), 110 Stat. at 1278, as well as numerous less serious offenses, see, e.g., id. § 440(e)(1), 110 Stat. at 1277 (transmission of wagering information); id. § 440(e)(2), 110 Stat. at 1277-78 (transportation for purposes of prostitution); id. § 440(e)(4), (6), 110 Stat. at 1278 (falsely making, forging, or counterfeiting, mutilating or altering a passport where a sentence of at least eighteen months is imposed); id. § 440(e)(6), (7), 110 Stat. at 1278 (improper entry or re-entry or misrepresentation or concealment of facts by one previously deported for an "aggravated felony"); id. § 440(e)(8), 110 Stat. at 1278 (commercial bribery, counterfeiting, forgery, or trafficking in vehicles with altered identification numbers punishable by a minimum of five years).

IIRIRA followed close on the heels of AEDPA. As was the case with AEDPA, IIRIRA's contribution to the expansion of the "aggravated felony" definition was two-fold. Besides adding the crimes of rape and sexual abuse of a minor, see IIRIRA § 321(a)(1), 110 Stat. 3009, 3009-627, IIRIRA dramatically broadened the definition's reach by expanding the terms of many offenses already denominated "aggravated felonies." For example, whereas crimes of violence and theft and burglary offenses had previously required imposition of a sentence of at least five years in order to qualify as "aggravated felonies," IIRIRA decreased the term to one year in each of these categories. See id. § 321(a)(3), 110 Stat. at 3009-627. IIRIRA also lowered from five years to one year the potential term of imprisonment sufficient to make a number of offenses "aggravated felonies." See id. § 321(a)(4), 110 Stat. at 3009-627 (RICO and certain gambling-related offenses); id. bribery, counterfeiting, forgery, or trafficking in vehicles with altered identification numbers); id. § 321(a)(11), 110 Stat, at 3009-628 (obstruction of justice, perjury, subornation of perjury, bribery of a witness). In addition, the statute reduced radically the amount of loss required for a money laundering, fraud, or tax evasion offense to be deemed an "aggravated felony." See id. § 321(a)(2), 110 Stat. at 3009-627 (money laundering an "aggravated felony" where loss exceeds $10,000, as contrasted to previous $100,000); id. § 321(a)(7), 110 Stat. at 3009-628 (fraud and tax evasion "aggravated felonies" where amount of loss exceeds $10,000, as opposed to previous threshold of $200,000); see also id. § 321(a)(9), 110 Stat, at 3009-628 (lowering sentencing threshold to twelve from eighteen months for document fraud offenses, but making exception for first time offenders whose offense was committed on behalf of a spouse, parent or child); id. § 321(a)(8), 110 Stat, at 3009-628 (deleting term of imprisonment requirement from alien smuggling provision, but creating exception for first offense on behalf of a spouse, parent or child).

The expansive impact of these changes has been greatly enhanced by IIRIRA's definition of "conviction" and its interpretation of "term of imprisonment" and "sentence." See IIRIRA § 322(a), 110 Stat. 3009, 3009-628-29 (where adjudication of guilt has been withheld, alien has nonetheless been "convicted" as long as "(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nob contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed."); id. ("Any reference to a term of imprisonment or a sentence . . . is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence. . . . "); see also Coonan, supra, 12 Geo.Immigr.L.J. at 613-14 (detrimental impact on lawful permanent residents of IIRIRA's definition of conviction to encompass deferred adjudications); Michael D. Patrick, Nullifying Expungements of Criminal Convictions, N.Y.L.J., May 24, 1999, at 3 (discussing BIA's interpretation of IIRIRA's "conviction" definition to encompass vacated or expunged convictions); Bruce Robert Marley, Comment, Exiling the New Felons: The Consequences of the Retroactive Application of Aggravated Felony Convictions to Lawful Permanent Residents, 35 San Diego L.Rev. 855, 867-70 (1998) (ranks of "aggravated felons" enlarged exponentially by IIRIRA's redefinition of "conviction" and "term of imprisonment").

2. Immigration Consequences of Conviction of an "Aggravated Felony"

As the scope of the "aggravated felony" definition expanded, the consequences of being labeled an "aggravated felon" grew in severity due to the progressive imposition of increasingly stringent procedural limitations and restrictions on the availability of relief from deportation. The ADAA, which, as noted, first introduced the concept of an "aggravated felony" in 1988, also contained a number of provisions designed to expedite removal of those who were convicted of the crimes then encompassed by the term. See, e.g., ADAA § 7347, 102 Stat. at 4471-72 (requiring that deportation proceedings involving "aggravated felons" be completed, where possible, before release from incarceration); id. § 7343(a), 102 Stat. at 4470 (prohibiting release of "aggravated felons" on bond following release from incarceration); id. § 7347(c), 102 Stat, at 4472 (presumption of deportability for "aggravated felons"); id. at § 7343(b), 102 Stat. at 4470 (making "aggravated felons" ineligible for voluntary departure); id. § 7349(a), 102 Stat, at 4473 (prohibiting "aggravated felons" from reapplying for admission, for ten years after deportation).

1990's IMMACT placed further procedural restrictions on "aggravated felons." See, e.g., IMMACT § 502(a), 104 Stat. at 5048 (period in which "aggravated felon" may appeal a final order of deportation reduced from sixty to thirty days); id. § 504(a), 104 Stat. at 5049 (requiring Attorney General to detain "aggravated felons" upon their release, whether release was to be followed by parole, supervised release or probation). But see id. § 504(a)(5)(B), 104 Stat. at 5049 (restoring availability of bond hearings for lawful permanent residents in deportation proceedings). Moreover, it drastically curtailed their eligibility for relief from deportation. See, e.g., id. § 511(a), 104 Stat. at 5052 (lawful permanent residents who served five years in prison in connection with the commission of an "aggravated felony" ineligible for 212(c) relief); id. § 515(a)(1), 104 Stat. at 5053 (aliens convicted of "aggravated felonies" barred from applying for asylum); id. § 509, 104 Stat. at 5051 ("aggravated felons" barred from establishing "good moral character" disqualifying them from voluntary departure, suspension of deportation and naturalization forms of relief); id. § 505, 104 Stat. at 5050 ("aggravated felons" ineligible for judicial recommendations against deportation and executive pardons); id. § 514, 104 Stat. at 5053 (increasing from ten to twenty years the period during which a deported "aggravated felon" was ineligible for readmission).

AEDPA and IIRIRA continued to attach harsher consequences to conviction of an "aggravated felony." Under AEDPA, "aggravated felonies" were among those offenses which rendered a final order of deportation unreviewable by any court. See AEDPA § 440(a), 110 Stat. at 1276-77. In addition, AEDPA eliminated the term of imprisonment threshold from the provision barring "aggravated felons" who had served a minimum of five years from applying for relief under section 212(c) of the INA. See Id. § 440(d), 110 Stat. at 1277 (making all lawful permanent residents convicted of an "aggravated felony" ineligible for section 212(c) relief, regardless of the amount of time served)

IIRIRA's contributions to added severity included: a permanent bar to re-entry for "aggravated felons" removed from the United States, see IIRIRA § 301(b), 110 Stat. at 3009-575-76; strict limitations on the eligibility of "aggravated felons" sentenced to an aggregate of five years or more for restrictions on removal to a country where life or freedom would be threatened, see id. § 305(a), 110 Stat. at 3009-602; ineligibility of "aggravated felons" for extreme family hardship relief under section 212(h) of the INA, see id. at § 348, 110 Stat. at 3009-639; and unreviewabiity of removal orders based on "aggravated felony" convictions, see id. § 306(a), 110 Stat. at 3009-607-08.

B. Discretionary Relief from Deportation

1. Section 212(c) Relief

The history of section 212(c) humanitarian relief and its treatment under the recent immigration statutes and case law are discussed elsewhere in detail. See, e.g., Pottinger, 51 F. Supp.2d at 352-53; Mojica, 970 F. Supp. at 136-38. As did Pottinger, the instant case raises an issue unresolved by the court of appeals for the Second Circuit in Henderson v. INS, 157 F.3d 106 (2d Cir. 1998): the applicability of AEDPA section 440(d)'s restrictions on 212(c) relief in cases in which deportation was predicated upon pre-AEDPA conduct, but deportation proceedings were not initiated until after AEDPA's enactment.

2. Section 212(h) Relief

Under the law in effect at the time Mr. Maria committed his crime, Section 212(h) of the INA gave the Attorney General discretion to grant a waiver of non drug-related criminal grounds of inadmissibility to any alien who could demonstrate that exclusion "would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son or daughter of such alien." 8 U.S.C. § 1182(h). Though section 212(h) is phrased in terms of exclusion rather than deportation, courts have held that denying eligibility for 212(h) relief to those aliens who are in deportation — as opposed to exclusion — proceedings violates the Equal Protection Clause. See, e.g., Yeung v. INS, 76 F.3d 337, 340-41 (11th Cir. 1995) (BIA interpretation of section 212(h) to permit the granting of waivers to aliens in exclusion proceedings but not to those in deportation proceedings violates the Equal Protection Clause); see also Francis v. INS, r532 F.2d 268, 273 (2d Cir. 1976) (restricting 212(c) relief to exclusion proceedings was unconstitutional since "[t]he government has failed to suggest any reason why this petitioner's failure to travel abroad following his conviction should be a crucial factor in determining whether he may be permitted to remain in this country").

Section 348(a) of IIRIRA, enacted well after Mr. Maria was convicted, amended section 212(h) to provide that:

  No waiver shall be granted under this subsection in
  the case of an alien who has previously been admitted
  to the United States as an alien lawfully admitted
  for permanent residence if . . . the alien has been
  convicted of an aggravated felony.

110 Stat. at 3009-639. Section 348(b) provided for an effective date of September 30, 1996, the date of IIRIRA's enactment, and made the amendment applicable to "any alien who is in exclusion or deportation proceedings as of such date unless a final administrative order in such proceedings has been entered as of such date." Id.

Mr. Maria argues that section 348 violates the Equal Protection Clause by irrationally discriminating between lawful permanent residents, who may not apply for section 212(h) relief if convicted of an "aggravated felony, " and other similarly situated aliens, whom section 348 does not bar from applying for such relief. Petitioner also argues that section 348 violates due process prohibitions on retroactive legislation by depriving him of the right to seek relief he would have been entitled to pursue under the law in effect at the time he committed his crime.

C. Eddy Maria's Situation

Eddy Maria is a twenty-four year-old native of the Dominican Republic. He was admitted to the United States for permanent residence on October 20, 1985, when he was ten years old. Since that time he has lived continuously in the United States.

He attended school in New York City through the 9th grade and subsequently participated in a General Equivalency Diploma (GED) program at his high school. Since leaving school, he has been employed as a restaurant dishwasher, security guard and hotel front desk clerk.

The entire immediate family of Mr. Mana, which includes his parents and six siblings, lives in the United States. Both parents are United States citizens as are two of Mr. Maria's siblings. His remaining siblings are lawful permanent residents.

On February 25, 1996, Mr. Maria was arrested in Queens and charged with participating in a robbery. On June 25, 1996, he pled guilty to attempted unarmed robbery in the second degree and was sentenced to two to four years in prison. All other charges were dropped. Mr. Maria has no other criminal record.

When Mr. Maria committed his crime, a single conviction for attempted. robbery in the second degree with a sentence of two to four years did not constitute grounds for deportation. Under then-existing law, there were two ways that a robbery conviction could lead to deportation. One was if the individual had previously committed a crime involving moral turpitude. See 8 U.S.C. § 1251(a)(2)(A)(ii) (1994) (amended and redesiguated as 8 U.S.C. § 1227(a)(2)(A)(ii) (Supp. II 1996)). The other was if the robbery conviction led to a sentence of at least five years. See Id. § 1101(a)(43)(G) (1994) ("aggravated felony" defined as conviction of a theft offense for which the term of imprisonment imposed is at least 5 years); id. § 1251(a)(2)(A)(iii) (1994) (an alien convicted of an "aggravated felony" is deportable). Since Mr. Maria received a sentence of less than five years and had no previous convictions, he was not deportable on the basis of his criminal act at the time he committed it.

Even if the offense had been deportable, however, Mr. Maria had a right to apply for humanitarian relief from deportation under what was then INA section 212(c), requiring a showing of good moral character and likely future positive contributions to family and society, and under section 212(h), requiring proof that an alien's deportation would result in exceptional hardship to citizen or legally resident immediate family members. Mr. Maria met the eligibility requirements for section 212(c) relief because he was a lawful permanent resident who had resided legally in the United States for more than seven years and he had not been convicted of an "aggravated felony" for which he had served five years in prison, as was then required for him to be blocked from receiving relief. See INA § 212(c), 8 U.S.C. § 1182(c) (1994). He had a right to apply for section 212(h) relief because his parents are United States citizens.

On April 24, 1996, approximately two months after Mr. Maria's arrest and approximately one month before he was convicted, AEDPA was enacted. Section 440(d) of AEDPA barred from section 212(c) relief any alien whose deportability was triggered by conviction of an offense covered in section 241(a)(2)(A)(iii)(A), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) and section 241(a)(2)(A)(i). AEDPA § 440(d), 110 Stat. at 1276 (codified at 8 U.S.C. § 1182(c) (Supp. II 1996)). The bar included anyone convicted of an "aggravated felony," two crimes involving moral turpitude, and any drug or firearm offense.

As already noted, AEDPA also added new offenses to the definition of "aggravated felony." See AEDPA § 440(e), 110 Stat. at 1277-78. The enlarged definition applied only to convictions entered post-AEDPA, and did not, in any event, alter the five-year sentence required for a robbery conviction to be considered an "aggravated felony."

On September 30, 1996, four months after Mr. Maria was convicted, the President signed IIRIRA into law. IIRIRA had a possible impact on Mr. Maria because it expanded the definition of the term "aggravated felony" to include "a theft offense [including an attempt] . . . for which the term of imprisonment [is] at least one year," IIRIRA § 321, 110 Stat. at 3009-627 (codified at 8 U.S.C. § 1101(a)(43)(G) (Supp. II 1996)). Section 321(b) of IIRIRA provided that "[n]otwithstanding any other provision of law (including any effective date), the term ["aggravated felony'] applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph." 110 Stat. at 3009-628 (codified as amended at 8 U.S.C. § 1101(a)(43)(G)).

Among IIRIRA's other innovations was the replacement of section 212(c) relief with an equivalent form of relief from deportation called cancellation of removal. See IIRIRA § 304(a), 110 Stat. at 3009-594 (codified as amended at 8 U.S.C. § 1229b (Supp. II 1996)). Section 309 of IIRIRA made this new form of relief available in proceedings commenced on or after April 1, 1997. IIRIRA § 309, 110 Stat. at 3009-625 (codified at 8 U.S.C. § 1229b (Supp. II 1996)). Because Mr. Maria's deportation was initiated prior to April 1, 1997, his eligibility for relief continues, under section 309, to be governed by AEDPA.

Proceedings were initiated against Mr. Maria early in 1997 while he was still incarcerated. By order to show cause dated February 23, 1997, INS alleged that Mr. Maria was deportable under section 241(a)(2)(A)(iii) due to his conviction of an "aggravated felony" as defined in INA section 10l(a)(43).

On May 12, 1997 and July 15, 1997, Mr. Maria's deportation hearing took place. Still a prisoner, Mr. Maria appeared pro se, The immigration judge found that Mr. Maria had been convicted of an "aggravated felony," that he was thus deportable and that he was ineligible for any form of relief from deportation. That same day, Mr. Maria was ordered deported to the Dominican Republic.

On July 27, 1997, still incarcerated and without the aid of an attorney, Mr. Maria filed a notice of appeal of his deportation order, disputing his designation as an "aggravated felon" and referring to the various equities of his case, including his family ties in the United States, good credit history prior to incarceration, lack of a prior criminal record, and his ability to be a productive member of society.

While his case was pending on appeal, Mr. Maria was able to obtain an attorney with the help of his family. His new counsel's request for additional time to submit a brief was denied. The BIA pointed out, however, that the denial did not preclude Mr. Maria from filing a motion to remand.

After having served two years of his sentence, Mr. Maria was released from prison and immediately taken into INS custody on February 23, 1998. He was released by the INS on bond ...

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