The opinion of the court was delivered by: Sifton, Senior District Judge.
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
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
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.
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,
IIRIRA provided transitional rules that were effective for all INS
proceedings initiated between October 30, 1996, and May 31, 1997. See
IIRIRA § 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 ...