EVANGELISTA v. ASHCROFT

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

MEMORANDUM AND ORDER

Petitioner Louis Evangelista ("Petitioner" or "Evangelista") seeks a writ of habeas corpus requiring the Immigration and Naturalization Service ("INS") to hold a hardship-based hearing on relief from deportation. A decision on the merits of this claim was initially held in abeyance pending a decision by the Second Circuit in the appeal of the case of Jankowski v. INS, 138 F. Supp.2d 269 (Conn. 2001).

On May 29, 2002, the Second Circuit reversed the decision of the district court in Jankowski. See Jankowski-Burczyk v. INS, 291 F.3d 172 (2d Cir. 2002). The effect of the Second Circuit's ruling was to foreclose one of Petitioner's arguments. Specifically, Petitioner was no longer in a position to argue that the statute denying him the right to seek a discretionary waiver of deportation was unconstitutional.*fn1

After the decision by the Second Circuit in Jankowski-Burczyk, this court ordered additional briefing in June 2002. Thereafter, the government was granted until October 2002 to respond to a letter submitted by Petitioner's counsel. That letter has now been submitted and the matter is now fully briefed, submitted and ripe for adjudication.

BACKGROUND

I. Evangelista's Background and Criminal Conviction

Evangelista is a native of Italy who has been a lawful permanent resident of the United States since 1961. Although Evangelista never became a citizen of this country, his wife is a naturalized United States citizen. His five adult children were all born in this country and remain residents of the United States.

In October of 1996, Evangelista was convicted, after a jury trial, of tax evasion. Specifically, Evangelista was convicted of conspiracy to impede the IRS in collection of income and payroll taxes in violation of 18 U.S.C. § 371, failure to collect or pay income/FICA taxes in violation of 26 U.S.C. § 7202 and attempt to evade or defeat tax in violation of 26 U.S.C. § 7201. After his conviction, Evangelista was sentenced to a 51 month term of imprisonment.

II. Proceedings Before the INS

In 1992, Evangelista was placed in removal proceedings by the INS.*fn2 The government's decision to seek to remove Evangelista from this country was based upon his conviction of an aggravated felony. See 8 U.S.C. § 1101(a)(43)(M)(ii). Evangelista sought administrative relief from deportation before the INS. In a decision dated April 11, 2000, an Immigration Judge ("IJ") denied the application. The decision of the IJ held, specifically, that Evangelista was, indeed convicted of an "aggravated felony," within the meaning of the relevant statute. Further, the IJ held that Evangelista was ineligible for a waiver of deportation pursuant to 8 U.S.C. § 1182(c) (referred to by the IJ and hereinafter as "Section 212(c)"). The rejection of the request for a waiver hearing was based on the holding that Section 212(c) was repealed and no longer available to individuals who, like Evangelista, were facing deportation and as a result of a conviction dated after the statute's repeal.

Evangelista moved for reconsideration of the decision of the IJ, which application was denied on June 2, 2000. On October 25, 2000, the initial and reconsideration decisions of the IJ were upheld by the Board of Immigration Appeals ("BIA"). The BIA agreed that Evangelista was convicted of an aggravated felony and therefore held that he was subject to removal. The BIA held further that it did not matter that the conduct for which Evangelista was punished took place prior to the effective date of the repeal of Section 212(c); Evangelista was nonetheless ineligible to apply for a waiver of deportation pursuant to the repealed statute.

In September of 2001, Evangelista was released from the custody of the Federal Bureau of Prisons, and, because of the foregoing proceedings, was placed in INS custody. Shortly thereafter, this action was commenced.

On September 13, 2001, after being placed in the custody of the INS, Petitioner commenced this proceeding seeking release. Meanwhile, upon being transferred to the custody of the INS, Petitioner was advised, by notice dated December 3, 2001, that the decision to detain him would be reviewed, after ninety days, by the INS District Director (the "District Director"). Petitioner was advised that any release that might be granted would be dependent upon his ability to demonstrate to the satisfaction of the INS that he neither posed a risk of flight nor was a danger to the community. Evangelista applied for release while this action was pending.

At argument held before this court in October of 2001, counsel informed the court that on December 12, 2001, the District Director would be reviewing Petitioner's claim for release pursuant to an order of supervision under 8 U.S.C. § 1231(a)(6). In view of the impending INS action, this court denied the request for release without prejudice to renewal after the INS determination.

In a decision issued in January 2002, the District Director denied Petitioner's request for release. In support of its decision, the INS cited Evangelista's history of involvement in criminal activities, which involvement spanned several years, as well as Evangelista's behavior during his incarceration. These factors led the INS to conclude that ...