than five years. Id.
Falconi's ineffective assistance of counsel claim failed because Falconi
did not establish that her counsel ineffectively represented her. See
Chapman Decl., Ex. 5. Thus, on January 17, 2002, Falconi's motion to
reopen her deportation proceeding was denied. Id. Thereafter, on March
4, 2002, Falconi filed this petition for a writ of habeas corpus
challenging the order of deportation.
In light of St. Cyr, the Immigration Judge's and BIA's retroactive
application of the AEDPA were clearly incorrect. Under St. Cyr, the
AEDPA's limitations upon INA § 212(c) relief do not apply to
convictions that occurred prior to its' enactment on April 24, 1996.
Since Falconi was convicted on April 9, 1996, she falls into the class of
aliens protected by St. Cyr. However, by the time St. Cyr was decided,
Falconi had served more than five years in prison and was, therefore,
literally ineligible from obtaining the INA § 212(c) relief that St.
Accordingly, the issue presented is whether time served in prison after
an initial erroneous BIA decision is reversed should count toward the INA
§ 212(c) five year bar, when the initial erroneous decision was
reached before the prisoner had served five years. This precise issue has
not been addressed by the Second Circuit, and district courts within the
circuit have decided the issue differently. See Bosquet v. INS, 2001 WL
1029368 at *3 (S.D.N.Y. Sept. 6, 2001) (Peck, Magistrate J.); see also
Greenridge v. INS, 204 F. Supp.2d 594 (S.D.N.Y. 2001) (Marreo, J.)
(granting habeas corpus petition); Lara v. Ins, 2000 U.S. Dist. LEXIS
21522 (D.Conn. Nov. 30, 2000) (Squatrito, J.) (same). But see Madera-Lora
v. McElroy, 2002 U.S. Dist. LEXIS 13939 (S.D.N.Y. July 31, 2002)
(Buchwald, J.) (denying habeas corpus petition). Although the Second
Circuit has not addressed the precise issue presented, their reasoning in
cases involving INA § 212(c) guides our analysis.
Initially, the mere fact that Falconi was sentenced to more than five
years imprisonment will not bar her from applying for INA § 212(c)
relief because "the judge [in denying INA § 212(c) relief] cannot
rely on how much time an alien will serve in prison, but must consider
only how much time an alien has served." Buitrago-Cuesta v. INS,
7 F.3d 291, 296 (2d Cir. 1993) (emphasis added).
Moreover, the five-year clock does not stop running once a prisoner
first applies for INA § 212(c) relief, rather it continues to run
until an Immigration Judge issues a decision. See id. In Buitrago-Cuesta
the court concluded that "[j]ust as we credit aliens for time spent in
the country while an appeal is pending before the BIA so that they are
eligible for § 212(c) relief, we will also consider the time aliens
spend in prison during the course of a hearing for purposes of rendering
them ineligible for § 212(c) relief." Id.
Therefore, in the present case, if the Immigration Judge had decided
Falconi's initial request for INA § 212(c) relief after she had
already served five years, then the error in retroactively applying the
AEDPA would have been harmless since Falconi would have been barred from
the pre-AEDPA § 212(c) relief anyhow. See, e.g., Brown v. United
States, 2002 U.S. Dist. LEXIS 14744 (Marin, J.). However, at the time the
Immigration Judge, and even the BIA, issued their decisions, Falconi had
served less than five years since Falconi was first arrested on April
19, 1995 and the BIA denied Falconi's appeal fifty-four months later, on
October 25, 1999. Thus, absent the Immigration Judge's and BIA's
retroactive application of the AEDPA, Falconi would have been eligible to
apply for INA § 212(c) discretionary relief. Accordingly, it must be
decided whether Falconi should be denied the right to be considered for
INA § 212(c) discretionary relief from deportation solely because of
the erroneous retroactive application of the AEDPA by the Immigration
Judge and BIA.
In Greenridge v. INS, 204 F. Supp.2d 594 (S.D.N.Y. 2001) (Marreo, J.),
and Lara v. Ins, 2000 U.S. Dist. LEXIS 21522 (D.Conn. Nov. 30, 2000)
(Squatrito, J.), the courts were faced with this question and in both
instances the court granted a writ of habeas corpus and remanded the
cases to the INS. In Greenridge the court reasoned that "[i]t is at least
fairly arguable that petitioner should not forfeit the right to seek a
§ 212(c) humanitarian waiver of removal solely as a result of an
incorrect decision by the [Immigration Judge]."
Despite Greenridge and Lara, the Court in Madera-Lora v. McElroy, 2002
U.S. Dist. LEXIS 13939 (S.D.N.Y. July 31, 2002) (Buchwald, J.), was
presented with same issue and denied the petitioner a writ of habeas
corpus. The court noted that by the time the BIA denied the petitioner's
motion to reopen, the petitioner had served more than five years and was
thus ineligible for INA § 212(c) relief. See Madera-Lora, 2002 U.S.
Dist. LEXIS 13939, at *4. However, in denying the petitioner a writ of
habeas corpus, the Court did not consider the fact that the five-year
clock stops running once an Immigration Judge issues a decision. See
Buitrago-Cuesta, 7 F.3d at 296.
Respondent argues that interpreting Buitrago-Cuesta in light of Rabiu
v. INS, 41 F.3d 879, 883 (2d Cir. 1994), suggests that Falconi's petition
should be denied because she currently has served more than five years
imprisonment. In Rabiu, the Court stated that:
although Rabiu was convicted of an aggravated felony
and sentenced to five years imprisonment, to date he
has served less than the five-year sentence. He
asserts in his brief that he has earned all possible
good-time credits while in prison. If this is true, he
will ultimately serve less than five years in prison,
and thus will not become ineligible for relief under
41 F.3d at 883. However, the respondent's reliance upon Rabiu is
misplaced. Rabiu does not stand for the proposition that in order to
become eligible for INA § 212(c) relief the petitioner must
ultimately serve less than five years. Rather, it merely stands for the
uncontested proposition that a petitioner who will serve less than five
years will not become ineligible. See id. There is an important
substantive difference between not being eligible at all and not becoming
Since the Immigration Judge and the BIA issued their decisions before
Falconi had served five years of imprisonment, her petition for a writ of
habeas corpus is granted and the case is remanded to the INS where, as a
matter of discretion, the merits of Falconi's request for INA §
212(c) relief from deportation can be evaluated.
For the foregoing reasons, Falconi's petition for a writ of habeas
corpus is granted to the extent that Falconi's application for INA §
212(c) relief is remanded to the INS for further proceedings in
accordance with the foregoing discussion.