The opinion of the court was delivered by: David G. Trager, United States District Judge
Eva T. Falconi ("Falconi"), pro se, petitions this Court for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2241. Falconi challenges a
final order of deportation of the Board of Immigration Appeals ("BIA") in
which she was found statutorily barred from seeking Immigration and
Nationality Act ("INA") § 212(c) discretionary relief. For the
reasons set forth below, Falconi's petition for a writ of habeas corpus
should be granted.
Falconi is 43 years-old and a citizen of Ecuador. See Chapman Decl.,
Ex. 3. On March 28, 1980, she entered the United States as a visitor and
on September 5, 1984, she was granted a lawful permanent resident
status. Id. Falconi is married and has a 16 year-old American-born son.
See Pet'r Reply to the United States Attorney Opp'n for a Writ of Habeas
Corpus at 18. On April 9, 1996, Falconi plead guilty and was convicted of
an aggravated felony for conspiring to import and possess cocaine with
intent to distribute, in violation of 21 U.S.C. § 846 & 963.*fn1
See Chapman Decl. at ¶ 4. Falconi was sentenced for a term of 151
months and is currently serving her sentence at the Federal Correctional
Institution in Danbury, Connecticut. See id. at ¶ 8.
The availability of INA § 212(c) discretionary relief from
deportation that Falconi seeks has been controlled by a series of
statutes. Initially, INA § 212 of 1952 stated that:
Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under an
order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years, may be
admitted in the discretion of the Attorney General. . . .
8 U.S.C. § 1182(c) (1994) (repealed 1996). Although the text of the
1952 INA § 212(c) suggests that it only applies to exclusion
proceedings, it has consistently been interpreted to apply to deportation
proceedings as well. See INS v. St. Cyr, 533 U.S. 289, 294; see also
Bedoya-Valencia v. INS, 6 F.3d 891, 895-98 (2d Cir. 1993).
Thus, under INA § 212, the Attorney General was granted broad
discretion to admit a large class of otherwise excludable aliens. See
St. Cyr, 533 U.S. at 294-95. However, statutes enacted in recent years
have reduced the size of the class of aliens eligible to be considered
for the discretionary relief. In 1990, INA § 212(c) was initially
amended by § 511(a) of the Immigration Act of 1990, Pub.L. No.
101-649, 104 Stat. 4978 (1990), which provided that "an[y] alien who has
been convicted of an aggravated felony and has served a term of
imprisonment of at least 5 years" is statutorily ineligible to be
considered for INA § 212(c) relief. Thus, under the 1990 amendment to
INA § 212(c), aliens convicted of an aggravated felony who had served
at least five years of imprisonment at the time their application for
relief was decided were
statutorily barred from even being considered for
INA § 212(c) discretionary relief.
On April 24, 1996, the class of persons eligible to be considered for
INA § 212(c) relief was further reduced when Congress passed the
Antiterrorism and Effective Death Penalty Act ("AEDPA") § 440(d),
Pub.L. 104-132, 110 Stat. 1277 (1996). See id. Under AEDPA § 440(d),
individuals convicted of an aggravated felony were statutorily ineligible
to be considered for INA § 212(C) discretionary relief, irrespective
of the time served in prison. See id. at 297, n. 7.
Although the AEDPA was passed on April 24, 1996, its limitations upon
INA § 212(c) relief were being retroactively applied to aliens whose
conviction had occurred before the AEDPA's enactment, but whose
deportation proceedings occurred after the AEDPA's enactment. In St.
Cyr, the Court rejected such a retroactive application of the AEDPA and
held that "§ 212(c) relief remains available for aliens . . . [who]
would have been eligible for § 212(c) relief at the time of their
plea under the law then in effect." Id. at 329. Thus, under St. Cyr, the
AEDPA's limitations on INA § 212(c) relief do not apply to aliens
convicted prior to April 24, 1996.
On July 5, 1996, the Immigration and Naturalization Service ("INS")
commenced deportation proceedings against Falconi by filing an Order to
Show Cause and Notice of Hearing. See Chapman Decl., Ex. 3. The INS
alleged that Falconi was subject to deportation pursuant to INA §§
241(a)(2)(B)(i) & 241(a)(2)(A)(iii) as an alien who has been
convicted of violating a law relating to a controlled substance and as an
alien convicted of an aggravated felony, respectively. Id. Thereafter, a
series of removal hearings were conducted before an Immigration Judge in
Danbury, Connecticut. See Chapman Decl., Ex.4 at 18. At a removal hearing
on February 18, 1998, Falconi requested, but was denied, INA § 212(c)
discretionary relief from deportation. See id. The Immigration Judge
found Falconi statutorily ineligible for INA § 212(c) relief and
ordered her deported to Ecuador without determining, as a matter of
discretion, the merits of her request. See id.
On February 23, 1998, Falconi appealed the Immigration Judge's decision
to the BIA. See Chapman Decl., Ex. 5. Falconi appealed on two grounds.
First, she claimed that the Immigration Judge incorrectly applied the
AEDPA retroactively to a conviction that occurred before its enactment on
April 24, 1996. Second, she argued that the AEDPA, itself, is
unconstitutional because it violates the equal protection clause. Id. The
BIA rejected both claims. Id. The BIA found that the AEDPA § 440(d)
bars Falconi from pursuing INA § 212(c) relief and that the BIA is
not capable of ...