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HENRY v. ASHCROFT

November 30, 2001

JENNY LEE HENRY, PETITIONER,
V.
JOHN ASHCROFT, ET AL., RESPONDENTS.



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

OPINION

Petitioner Jenny Lee Henry seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, vacating her order of removal and declaring her eligible to apply for a cancellation of removal pursuant to § 240A of the Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1229b, and a waiver of removal pursuant to INA § 212(h), 8 U.S.C. § 1182(h).

BACKGROUND

I. Statutory Background

Pursuant to INA § 237, an alien who has been convicted of two crimes of moral turpitude not arising out of a single scheme of criminal conduct is subject to removal. See 8 U.S.C. § 1227(a)(2)(A)(ii). Petit larceny historically has been considered a crime involving moral turpitude. See Brett v. INS, 386 F.2d 439, 439 (2d Cir. 1967), cert. denied, 392 U.S. 935, 88 S.Ct. 2304, 20 L.Ed.2d 1394 (1968); United States ex rel. Ventura v. Shaughnessy, 219 F.2d 249, 251 (2d Cir. 1955).

Prior to 1996, certain lawful permanent residents ("LPRs") otherwise determined to be deportable were entitled to apply to the Attorney General for a waiver of deportation under INA § 212(c).*fn1 See 8 U.S.C. § 1182(c) (1990). To qualify for a waiver under INA § 212(c), an alien had to have seven continuous years of lawful residence in the United States. See id.

On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which "altered many aspects of the immigration laws, including the eligibility requirements for discretionary relief from deportation." Rojas-Reyes v. INS, 235 F.3d 115, 120 (2d Cir. 2000). "Removal" proceedings replaced what had previously been called "deportation" and "exclusion" proceedings. Id. (citing IIRIRA § 304(a)(3), codified at 8 U.S.C. § 1229a). Relief from deportation — "suspension of deportation" — was replaced with a new form of relief, called "cancellation of removal." Id. (citing IIRIRA § 304(a)(3), codified at 8 U.S.C. § 1229b).

To qualify for a cancellation of removal under IIRIRA, an alien must establish seven continuous years of residence in the United States, just as under the repealed INA § 212(c). See INA § 240A(a)(2), 8 U.S.C. § 1229b(a)(2). IIRIRA, however, also added a "clock stopping" provision that had not existed with respect to INA § 212(c). See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (Supp. 2001). The clock stopping provision provides:

For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2), when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.

Id. (emphasis added). In other words, under this provision, an alien's accrual of a period of continuous residence stops when she is served with a notice to appear or when she commits an included offense.

II. Facts

Petitioner, a native of Guyana, entered the United States as an LPR on November 11, 1984. (Gov. Return, Ex. A at 72). Petitioner has at least three convictions for petit larceny,*fn2 the first dated October 5, 1987. (Gov. Return, Ex. A at 85). Her most recent convictions, based on guilty pleas, occurred on January 10 and March 14, 2000. (Gov. Return, Ex. A at 103, 105). As a result of these convictions, as she concedes, petitioner is subject to removal.

Petitioner has not traveled abroad since her arrival in the United States on November 11, 1984. (Gov. Return, Ex. A at 227). Petitioner has five children, all born in the United States, ranging in age from ...


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