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FALCONI v. IMMIGRATION AND NATURALIZATION SERVICE

November 26, 2002

EVA T. FALCONI, PLAINTIFF,
V.
IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANT.



The opinion of the court was delivered by: David G. Trager, United States District Judge

MEMORANDUM AND ORDER

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.

Background

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.

(1)

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8 U.S.C. § 1182(c) (1994) (repealed 1996).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.

(2)

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 ...


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