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PENA-ROSARIO v. RENO

February 8, 2000

JOSE FRANCISCO PENA-ROSARIO, PETITIONER/PLAINTIFF,
V.
JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES; DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE; EDWARD MCELROY, NEW YORK DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE; IMMIGRATION AND NATURALIZATION SERVICE; UNITED STATES DEPARTMENT OF JUSTICE, RESPONDENTS/DEFENDANTS. EFRAIN ENRIQUE VARGAS, PETITIONER/PLAINTIFF, V. JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES; DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE; EDWARD MCELROY, NEW YORK DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE; IMMIGRATION AND NATURALIZATION SERVICE; UNITED STATES DEPARTMENT OF JUSTICE, RESPONDENTS/DEFENDANTS. NEIL ROBINSON, PETITIONER/PLAINTIFF, V. JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES; DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE; LYNN UNDERDOWN, LOUISIANA DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE; IMMIGRATION AND NATURALIZATION SERVICE; UNITED STATES DEPARTMENT OF JUSTICE, RESPONDENTS/DEFENDANTS. SERGIO TRINIDAD, PETITIONER/PLAINTIFF, V. JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES; DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE; EDWARD MCELORY, NEW YORK DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE; LYNN UNDERDOWN, LOUISIANA DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE; IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS/DEFENDANTS. WEST PAGE 350 BAJRUSH GJETA, PETITIONER/PLAINTIFF, V. JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES; DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE; EDWARD MCELORY, NEW YORK DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE; LYNN UNDERDOWN, LOUISIANA DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE; IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS/DEFENDANTS.



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

MEMORANDUM AND ORDER

These five habeas corpus petitions are brought by aliens challenging final orders of removal. They each contend that statutory changes from 1996 rendering certain convicted felons ineligible for discretionary waivers of deportation do not apply to them since their criminal conduct took place before enactment of those statutes. The government challenges the court's subject matter jurisdiction over these cases.

I conclude that I have subject matter jurisdiction pursuant to the habeas statute, 28 U.S.C. § 2241. In addition, I conclude that the statutory changes do not apply to these petitioners and therefore grant each of them writs of habeas corpus and order that their removal orders be vacated so that they may apply for discretionary waivers.

BACKGROUND

A. José Francisco Pena-Rosario

José Francisco Pena-Rosario entered the United States as a lawful permanent resident on November 2, 1979. He was eight years old at the time. (Declaration of Assistant United States Attorney Scott Dunn ("Dunn/Pena-Rosario Declaration"), ¶ 3; Verified Petition for a Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief ("Pena-Rosario Complaint"), ¶ 12.)

On August 3, 1993, Pena-Rosario was convicted of attempted criminal sale of a controlled substance and sentenced to one to three years in prison. On September 20, 1993, he was again convicted of attempted criminal sale of a controlled substance and sentenced to one to three years, to be served concurrently with the August 3 conviction. (Dunn/Pena-Rosario Declaration, ¶ 4.)

On August 5, 1994, the Immigration and Naturalization Service ("INS") served an order to show cause on Pena-Rosario charging him with being deportable pursuant to Section 241(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), for being an alien convicted of an aggravated felony. Unbeknownst to Pena-Rosario, however, the INS did not file the order to show cause with the immigration court. (Dunn/Pena-Rosario Declaration, ¶ 5; Pena-Rosario Complaint, ¶ 15.) On November 7, 1995, Pena-Rosario completed an application for a waiver of deportation pursuant to INA § 212(c), 8 U.S.C. § 1182(c) (1994), and proffered the required payment. The immigration court would not accept the application because the INS had not yet filed the order to show cause with the court. (Pena-Rosario Complaint, ¶ 16.)

On June 19, 1997, the INS issued a notice to appear to Pena-Rosario, charging him with being removable pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. III 1997), for being an alien who had committed an aggravated felony and INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (Supp. III 1997), for being an alien convicted of a drug-related offense. (Dunn/Pena-Rosario Declaration, ¶ 6; Pena-Rosario Complaint ¶ 22.)

At a removal hearing on December 9, 1997, Pena-Rosario conceded his deportability but sought a discretionary waiver. The Immigration Judge, however, ruled that 1996 changes to the immigration laws had made Pena-Rosario statutorily ineligible for a waiver of inadmissibility under INA § 212(c) and therefore ordered him removed to the Dominican Republic. The Board of Immigration Appeals dismissed Pena-Rosario's appeal on April 5, 1999, finding that the immigration judge had correctly determined that Pena-Rosario was not eligible for discretionary relief. (Dunn/Pena-Rosario Declaration, ¶ 7, 8; Pena-Rosario Complaint ¶ 23-25.)

Pena-Rosario filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on August 9, 1999.

B. Efrain Enrique Vargas

Efrain Enrique Vargas, a native of the Dominican Republic, entered the United States as a lawful permanent resident on October 3, 1986. (Declaration of Assistant United States Attorney Mary Elizabeth Delli-Pizzi ("Delli-Pizzi/Vargas Declaration"), ¶ 3; Verified Petition for a Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief ("Vargas Complaint"), ¶ 11.) On June 4, 1996 he was convicted after guilty plea of immigration fraud, 18 U.S.C. § 1546, and identification document fraud, 18 U.S.C. § 1028, in the United States District Court for the Southern District of New York. (Delli-Pizzi/Vargas Declaration, ¶ 4; Vargas Complaint ¶ 15.) The convictions rested on Vargas's conduct from June 1992 to June 1994, when he was paid to prepare and submit false documents to the INS for individuals trying to obtain work authorization papers. (Vargas Complaint ¶ 12.)

The INS issued Vargas a notice to appear on April 1, 1997 and placed him in removal proceedings for having committed an aggravated felony, see INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. III 1997). (Delli-Pizzi/Vargas Declaration, ¶ 5; Vargas Complaint, ¶ 20.) On May 5, 1997, the INS also charged Vargas with being deportable on the independent basis that his conviction was for immigration fraud, see id. § 241(a)(3)(B)(iii), 8 U.S.C. § 1227(a)(3)(B)(iii) (Supp. III 1997) (alien convicted of immigration fraud pursuant to 18 U.S.C. § 1546 deportable). (Exhibit C to Delli-Pizzi/Vargas Declaration; Vargas Complaint ¶ 21.) On July 8, 1997, Vargas posted a $6,000 bond and was released from INS custody. (Delli-Pizzi Declaration, ¶ 6.)

In a hearing before an Immigration Judge on February 6, 1998, Vargas sought a discretionary waiver of removal, but the judge found that he was ineligible and ordered him removed to the Dominican Republic. (Delli-Pizzi/Vargas Declaration, ¶ 8; Vargas Complaint, ¶ 23.) On June 24, 1999, the Board of Immigration Appeals dismissed Vargas's appeal, also concluding he was statutorily ineligible for the relief he sought. (Delli-Pizzi/Vargas Declaration, ¶ 9; Vargas Complaint ¶ 25.)

Vargas filed his habeas petition in this court on October 1, 1999.

C. Neil Robinson

On October 23, 1998, the INS initiated removal proceedings against Robinson by issuing a notice to appear charging him with being removable pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. III 1997), for having committed an aggravated felony. On May 18, 1999, an Immigration Judge in Oakdale, Louisiana, where Robinson is detained, issued a removal order against him. (Id., ¶ 6.) The Board of Immigration Appeals, which held that Robinson, as an aggravated felon, was ineligible to apply for a discretionary waiver, dismissed Robinson's appeal of the removal order on September 16, 1999. (Id., ¶ 7.)

Robinson filed his habeas petition in this court on October 29, 1999.

D. Sergio Trinidad

Sergio Trinidad, a native of the Dominican Republic, entered the United States as a lawful permanent resident on April 3, 1987. (Declaration of Assistant United States Attorney Scott Dunn ("Dunn/Trinidad Declaration"), ¶ 3.) On October 24, 1989, he was indicted in the Supreme Court of the State of New York, County of the Bronx, for criminal sale of a controlled substance. (Id., Exhibit B.) He was convicted of the offense on January 26, 1999. (Id., ¶ 4.) (The record does not explain the lengthy lapse of time between indictment and conviction.)

The INS placed Trinidad in removal proceedings on March 24, 1999, charging him with being deportable both for having committed an aggravated felony and a drug offense. (Id., ¶ 5.) On July 13, 1999, the Immigration Judge found that Trinidad was not eligible for relief and ordered him removed to the Dominican Republic. (Id., ¶ 6.) On November 1, 1999, the Board of Immigration Appeals dismissed Trinidad's appeal, finding that the removal proceeding suffered from no due process defects, that he was not hampered by his inability to speak English, and that he was statutorily ineligible for a discretionary waiver of deportation. (Id., Exhibit E.)

Trinidad filed his habeas petition in this Court on November 1, 1999.

E. Bajrush Gjeta

Bajrush Gjeta, a native and citizen of Albania, was admitted to the United States as a refugee on November 26, 1990. (Declaration of Assistant United States Attorney Mary Elizabeth Delli-Pizzi ("Delli-Pizzi/Gjeta Declaration"), ¶ 3.) On an unspecified date, his status was adjusted to lawful permanent resident. (Id.)

On or about November 21, 1996, Gjeta was convicted in the United States District Court for the District of Massachusetts of conspiracy to distribute heroin and possession with intent to distribute heroin. (Id., ¶ 4.) Gjeta's judgment specifies that his offense conduct concluded on December 8, 1995. (Id., Exhibit B.)

On March 9, 1998, the INS issued Gjeta a notice to appear initiating removal proceedings against him by reason of his having committed an aggravated felony. (Id., ¶ 5.) On June 24, 1998, an immigration judge denied Gjeta's application for political asylum, withholding of deportation, and relief under Article III of the Torture Convention. (Id., ¶ 6-7.) After an appeal, a remand to the immigration judge, another adverse decision, and a second appeal, the Board of Immigration Appeals on December 7, 1999, dismissed Gjeta's appeal, finding him ineligible for the relief he sought. (Id., ¶ 8-11.)

In his petition for a writ of habeas corpus, received in this court on November 17, 1999, Gjeta argues only that he should be able to apply for a discretionary waiver of deportation pursuant to INA § 212(c). He does not press his asylum or torture claims.

F. The Issues Raised

Each petitioner contends that (i) application of the 1996 restrictions on discretionary waivers to him would be impermissibly retroactive because his criminal conduct (upon which the order of removal is based) took place prior to the statutory changes, see Landgraf v. U.S.I. Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994);*fn1 and (ii) denying him the ability to seek a discretionary waiver would violate the Equal Protection Clause, since criminal aliens in deportation or exclusion proceedings are still allowed to seek a waiver, while those in removal proceedings, like petitioners here, are not.

The government challenges the court's subject matter jurisdiction over these petitions, and, in Robinson's case, personal jurisdiction. In the event that jurisdiction is found, the government contends that the 1996 amendments to the INA do apply to these petitioners, thus rendering them ineligible for discretionary waivers, and that such ineligibility presents no constitutional infirmity.

DISCUSSION

A. Statutory Framework

Before discussing the complex jurisdictional issues presented by this case, it will be helpful to briefly sketch the statutory framework governing both discretionary waivers of deportation and judicial review and note how it was altered in 1996.

1. Immigration and Naturalization Act of 1961

a. Deportation and Discretionary Waivers

Under § 241 of the old INA, 8 U.S.C. § 1251 (1994), an alien could be deported for having committed, inter alia, a crime of "moral turpitude," an "aggravated felony," or a drug offense. The Attorney General had discretion to waive deportation of such aliens who had an unrelinquished domicile in the United States for at least seven years, unless the alien was deportable because of an aggravated felony ...


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