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SANTOS-GONZALEZ v. RENO

April 18, 2000

JOSE DIMAS SANTOS-GONZALEZ, PETITIONER,
V.
JANET RENO ETC., ET ALIA, RESPONDENTS.



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

MEMORANDUM AND ORDER

Petitioner Jose Dimas Santos-Gonzalez filed this habeas corpus petition with this Court on November 1, 1999, requesting a stay of deportation and challenging a decision of the Board of Immigration Appeals finding him ineligible for relief from deportation on humanitarian grounds under § 212(c) of the Immigration and Nationality Act ("INA"). Named as respondents are Janet Reno, Attorney General of the United States; Doris Meissner, Commissioner of the Immigration and Naturalization Service ("INS"); Edward McElroy, New York City District Director of the INS; John Doe District Director of the INS; and the INS and Department of Justice. Petitioner sought a temporary restraining order and preliminary injunction enjoining the government from deporting him pending a hearing on the merits of his petition, and an order to show cause why the petition should not be granted. The government has agreed to stay deportation pending a resolution of the petition on its merits.

For the reasons set forth below, the petition is granted, and the matter is remanded to the INS for proceedings consistent with this decision.

BACKGROUND

The following facts are drawn from the verified petition and supporting affirmation, the bail application and supporting affirmation, and the declaration of Assistant United States Attorney Scott Dunn, Disputes are noted.

Petitioner entered the United States as a legal permanent resident in 1974 and has lived here ever since. He was born in the Dominican Republic on September 5, 1953, was admitted to the United States as a twenty-one year old student, and is now forty-six. Petitioner's wife, who is a Dominican citizen, resides in the United States and is currently undergoing chemotherapy for breast cancer. Petitioner has no children and has three siblings living in the United States and two siblings in the Dominican Republic. Petitioner has worked and resided in Queens until his deportation detention, except when incarcerated.

Petitioner has been found deportable by respondents on the basis of one conviction in December 1986 for criminal sale of a controlled substance (heroin) in the fifth degree. Petitioner was also convicted in 1980 for criminal possession of a weapon.*fn1 He was sentenced to two to four years in prison and was released on or about December 7, 1988. Respondents have declined to consider his case for discretionary waiver of deportation pursuant to § 212(c) because of 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. Congress passed both of the acts after petitioner committed the offense for which the INS seeks to deport him. Petitioner is currently subject to a final order of deportation and is in INS detention in Batavia, New York.

Petitioner was stopped by the police on June 19, 1998, on suspicion of entering the subway without paying.*fn2 The case was adjourned in contemplation of dismissal. However, petitioner was prosecuted as an absconder for violation of his parole imposed following his 1986 conviction.*fn3 He was incarcerated on the parole violation until February 1999 and, while in custody, underwent treatment for substance abuse. Since his release by the state, he has been in INS custody. While in INS custody, he has been involved in a physical altercation involving a number of detainees.

On April 29, 1999, an immigration judge ordered petitioner removed*fn4 and deported to the Dominican Republic. The judge rejected petitioner's request for a hearing to obtain a discretionary waiver of deportation pursuant to § 212(c) of the Immigration and Naturalization Act, because that provision had been repealed before his application. The Board of Immigration Appeals ("BIA") affirmed the order of deportation against petitioner on October 8, 1999.

Section 212(c) of the INA entitled long-time legal permanent residents accused of crimes triggering deportation to a discretionary hearing for a waiver of deportation or exclusion. See 8 U.S.C. § 1182 (c) (1994) (repealed 1996); Francis v. INS, 532 F.2d 268 (2d Cir. 1976). The immigration judge's decision to grant the waiver depended on a weighing of many factors, including family ties with the United States, residence of long duration in this country, evidence of hardship to the individual and family if deportation were to occur, a history of employment, and proof of rehabilitation. See Mojica v. Reno, 970 F. Supp. 130, 137 (E.D.N.Y. 1997). Section 212(c) created an entitlement only to a hearing and the exercise of discretion, not to immunity from deportation. See id.

Petitioner filed the instant petition with this Court on November 1, 1999. Petitioner was represented by counsel at all stages of the administrative proceedings and in the current action. On December 23, 1999, this Court denied petitioner's application to be released on bail pending the resolution of his petition.

DISCUSSION

In 1996, Congress passed two laws that substantially revised immigration law and policy. Between them, the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") significantly increased the number of crimes for which an alien must be deported, see 8 U.S.C. § 1101 (a)(43), stripped many lawful permanent resident aliens of the right to discretionary and humanitarian relief, see id. § 1229b(a), and attempted to strip the federal courts of any meaningful review of actions taken by the Executive in excluding or removing aliens from this country, see id. § 1252. AEDPA was signed into law on April 24, 1996, and IIRIRA was enacted on September 30, 1996.

IIRIRA provided transitional rules that were effective for all INS proceedings initiated between October 30, 1996, and May 31, 1997. See IIRIRA ยง 309, 110 Stat. at 3009-625; Maria v. McElroy, 68 F. Supp.2d 206, 214 (E.D.N.Y. 1999). For removal proceedings begun after April 1, 1997, however, the permanent rules of IIRIRA are in effect. See id. Generally, removal proceedings are deemed commenced upon the issuance of the notice to appear, also called the order to show cause. See Pena-Rosario v. Reno, 83 F. Supp.2d 349, 362-63 (E.D.N.Y. 2000); Dunbar v. INS, 64 F. Supp.2d ...


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