Argued, November 26, 2013
As Amended May 12, 2014.
Defendant-Appellant Gill appeals from a judgment of the United States District Court for the Western District of New York (Skretny, J.), denying his motion to dismiss the indictment for illegal reentry in violation of 8 U.S.C. § 1326(a), (b)(2). For the reasons stated below, case is REMANDED for further proceedings consistent with this opinion.
JOSEPH J. KARASZEWSKI, Assistant United States Attorney, for William J. Hochul, United States Attorney, Western District of New York, Buffalo, NY, for Appellee.
MICHAEL J. STACHOWSKI, Buffalo, NY, for Defendant-Appellant.
Before: KATZMANN, Chief Judge, WINTER, and CALABRESI, Circuit Judges.
Katzmann, Chief Judge
This case requires us to decide whether the petitioner Ricardo Allen Gill can sustain a collateral challenge to his order of deportation, which is a defense to a prosecution for illegal reentry in violation of 8 U.S.C. § 1326(a), (b)(2). The resolution of this question turns on whether the Supreme Court's ruling in Vartelas v. Holder, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012), requires us to find that Gill is eligible for relief from deportation under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), (" § 212(c)" ). Prior to 1996, § 212(c) provided many noncitizens convicted of aggravated felonies with the opportunity to seek relief from deportation. The repeal of § 212(c) in 1996 effectively eliminated statutorily-provided discretionary relief from deportation for this class of noncitizens. See Rankine v. Reno, 319 F.3d 93, 96 (2d Cir. 2003). Because the rescission of such relief affected an immense number of people, there has been a considerable amount of litigation to determine whether § 212(c) relief remains available to noncitizens who were once eligible for this form of relief. In the instant appeal, we must consider whether Congress's repeal of § 212 would have an impermissible retroactive effect if applied to foreclose such relief to noncitizens like Gill who, prior to the date of § 212(c)'s repeal, were convicted of aggravated felonies after proceeding to trial. In Rankine, we held that deeming the petitioners ineligible for § 212(c) relief on the basis of pre-repeal convictions obtained after trial not would have an impermissibly retroactive effect because the petitioners in that case had not " detrimentally rel[ied] on the availability of discretionary relief when exercising their right to trial." Id. at 95. However, we conclude that, in light of Vartelas, Rankine is no longer good law in that respect. We now hold that deeming noncitizens like Gill ineligible for § 212(c) relief merely because they were convicted after trial would have an impermissible retroactive effect because it would impermissibly attach
new legal consequences to convictions that pre-date the repeal of § 212(c). Because Gill was erroneously found to be ineligible for relief under § 212(c), we find that the district court erred, and remand for further proceedings consistent with this opinion.
I. Factual Background
Gill, a native and citizen of Barbados, came to the United States on a B-2 visa in or about 1972 with his parents, three brothers, and three sisters. At that point, he was approximately five years old. While he was growing up, he went to school in the Bronx and had various jobs. He eventually became a lawful permanent resident on January 6, 1984, and his parents and siblings became lawful permanent residents as well.
In or around 1986, Gill began using crack cocaine and committing crimes--largely theft-related--to support his habit. As a result, he was prosecuted and pleaded guilty to several related offenses including, as relevant to this case, a 1989 conviction for attempted criminal sale of a controlled substance in the third degree in violation of New York Penal Law § § 110 and 220.39. While serving his sentence, Gill got treatment for his drug addiction and became sober. However, because of Gill's conviction for attempted sale of a controlled substance, which is considered an aggravated felony under immigration law, immigration authorities (then called the Immigration and Naturalization Service (" INS" )) initiated deportation proceedings against him on July 16, 1990.
In 1991, Gill met Michelle McNeal, a United States citizen, and they married in 1993. She was pregnant when they met and together they raised her son, Randy Hinkston (" Randy" ). Gill worked a steady job and paid for McNeal's tuition as she pursued her nursing degree, as well as the costs of raising her son, whom Gill treated as his own.
At his November 1992 hearing in immigration court, Gill conceded that he was deportable and applied for a waiver of deportation under § 212(c). While his immigration case was pending, Gill was convicted after trial of attempted robbery in the first degree in violation of New York Penal Law § § 110 and 160.15 (the " 1995 conviction" ), which is also considered to be an aggravated felony. According to Gill's testimony about that conviction at his immigration hearing, his charge was based on the theory that he had aided and abetted a co-defendant who had committed the robbery.
II. Deportation Proceedings
Gill's merits hearing in his immigration case took place before an immigration judge (" IJ" ) on January 8, 1997, while he was serving his sentence for attempted robbery. Gill, his wife, his brother, his
niece, and his mother testified about the important role that Gill played as a father to Randy, the presence of Gill's extended family in the United States, his work history, the fact that he had paid taxes, and his criminal convictions. His wife testified that Gill had paid for all of Randy's expenses and her tuition to pursue her nursing degree. The IJ reserved decision, noting that Gill had strong family support and had " done an awful lot to help [him]self" in becoming drug-free, but also had a significant criminal history, App'x 142. The IJ indicated that he was undecided at the conclusion of the hearing.
On January 27, 1997, the IJ denied Gill's application for § 212(c) relief as a matter of discretion. In a written decision, the IJ noted Gill's strong family ties, but concluded that Gill's equities were insufficient to overcome his " serious, recent, and severe" criminal record. App'x 157. Accordingly, he ordered Gill deported.
Gill appealed to the BIA on February 26, 1997. The INS's Assistant District Counsel of the New York District submitted a letter-brief asking the BIA to dismiss the appeal on the ground that Gill was statutorily ineligible for relief because the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), Pub. L. No. 104-132, § 440(d) 110 Stat. 1214, 1277-78, made noncitizens with aggravated felony convictions (like Gill) ineligible for § 212(c) relief. In that letter-brief, the INS argued that AEDPA applied to all cases that were pending when AEDPA went into effect. The BIA dismissed Gill's appeal on that basis in a single-member, per curiam order dated August 21, 1997. The BIA did not reach the merits of Gill's appeal, which challenged the IJ's discretionary denial of § 212(c) relief. Gill did not seek habeas review and was deported to Barbados on April 23, 2004, after serving his sentence for the 1995 conviction.
III. Reentry Charge and Motion to Reopen
Gill returned to the United States without authorization in approximately 2007. Until 2010, he maintained a residence in Buffalo, New York, and a steady job as a residential maintenance worker. He has had no other convictions since 1995. On January 5, 2010, he was taken into custody by DHS officers for being unlawfully present in the United States. On September 7, 2010, he was indicted for illegal reentry in violation of 8 U.S.C. § 1326 (a), (b)(2), the offense which is the subject of the instant appeal.
On April 29, 2010, Gill moved the BIA to reopen his deportation proceedings. His motion to reopen was based on INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), a decision that post-dated his order of deportation, which held that § 212(c) relief remained available to noncitizens " whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect," id. at 326. Gill argued that the BIA had dismissed his appeal based on an erroneous finding that he was ineligible for § 212(c) relief, and therefore he had been denied meaningful administrative and judicial review of the IJ's decision. He acknowledged that his motion was untimely, but sought equitable tolling since St. Cyr was not decided until well after the time limit for filing a motion to reopen had passed. He also sought sua sponte reopening as a matter of discretion.
On May 20, 2010, the BIA denied the motion for three reasons. First, it held that it lacked jurisdiction to reopen deportation proceedings under the socalled " departure bar" because Gill had already departed the United States. App'x 166
(citing 8 C.F.R. § 1003.2(d), and Matter of Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008)). Second, the BIA found that " in any event, [under 8 CFR § 1003.44(h)] a special motion seeking relief under section 212(c) of the Act had to be filed by April 26, 2005." App'x 167. Third, the BIA refused to reopen proceedings sua sponte, ruling that the departure bar divested it of jurisdiction to reopen the proceedings sua sponte ...