157 F.3d 106 (2nd Cir. 1998), 97-4050, Henderson v. I.N.S.

Docket Nº:Docket Nos. 97-4050, 97-4070, 97-2629, 97-2599 and 97-2600.
Citation:157 F.3d 106
Party Name:Franklin HENDERSON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Saul NAVAS, Petitioner, v. Janet RENO, as Attorney General of the United States, et al., Respondent. Engin YESIL, Petitioner-Appellee, v. Janet RENO, Attorney General; Doris Meissner, Commissioner of the Immigration and Naturalization Service; Immigration and Nat
Case Date:September 18, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 106

157 F.3d 106 (2nd Cir. 1998)

Franklin HENDERSON, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Saul NAVAS, Petitioner,

v.

Janet RENO, as Attorney General of the United States, et

al., Respondent.

Engin YESIL, Petitioner-Appellee,

v.

Janet RENO, Attorney General; Doris Meissner, Commissioner

of the Immigration and Naturalization Service; Immigration

and Naturalization Service; John B.Z. Caplinger, District

Director; Nancy Hooks, Officer in Charge, Respondents-Appellants.

Guillermo MOJICA, Petitioner-Appellee,

v.

Janet RENO, as Attorney General of the United States, et

al., Respondents-Appellants.

Saul NAVAS, Petitioner-Appellee,

v.

Janet RENO, as Attorney General of the United States, et

al., Respondents-Appellants.

Docket Nos. 97-4050, 97-4070, 97-2629, 97-2599 and 97-2600.

United States Court of Appeals, Second Circuit

September 18, 1998

Argued Jan. 21, 1998.

Page 107

Kerry William Bretz, Bretz & Associates, New York, NY, (Alan Strauss, on the brief), for Petitioner Henderson, No. 97-4050.

Helaine Barnett, The Legal Aid Society, New York, NY, (Scott A. Rosenberg, Gemma Solimene, and Olivia Cassin, on the brief), for Petitioner Navas, No. 97-4070.

Manuel D. Vargas, New York, NY, for Petitioner Navas, No. 97-4070.

Page 108

Lucas Guttentag, American Civil Liberties Union Foundation, New York, NY, Counsel on Jurisdiction (Lee Gelernt and Michael J. Wishnie, on the brief), for Petitioners Henderson, No. 97-4050, and Navas, No. 97-4070.

Michael P. DiRaimondo, New York, NY, and Thomas E. Moseley, Newark, NJ, for Petitioners Henderson, No. 97-4050, and Navas, No. 97-4070.

Scott A. Rosenberg, Director of Litigation, Civil Appeals & Law Reform Unit, New York, NY, and Manuel D. Vargas, New York, NY, for Petitioner Navas, No. 97-4070.

Diogenes P. Kekatos, for Mary Jo White, United States Attorney for the Southern District of New York, New York, NY (James A. O'Brien, III, Special Assistant United States Attorney, Steven M. Habar, Assistant United States Attorney, on the brief), for Respondents, Nos. 97-4050, 97-4070.

Michael P. DiRaimondo, New York, NY, (Thomas E. Moseley, Marialaina L. Masi, on the brief), for Petitioner-Appellee Yesil, No. 97-2629.

Diogenes P. Kekatos, for Mary Jo White, United States Attorney for the Southern District of New York, New York, NY (James A. O'Brien, III, Special Assistant United States Attorney, Steven M. Habar, Assistant United States Attorney, on the brief), for Respondents-Appellants, No. 97-2629.

Kerry William Bretz, Bretz & Associates, New York, NY, (Alan Strauss, on the brief), for Petitioner-Appellee Mojica, No. 97-2599.

Helaine Barnett, The Legal Aid Society, New York, NY (Scott A. Rosenberg, Gemma Solimene, and Olivia Cassin, on the brief), for Petitioner-Appellee Navas, No. 97-2600.

Manuel D. Vargas, New York, NY, for Petitioner-Appellee Navas, No. 97-2600.

Lucas Guttentag, American Civil Liberties Union Foundation, New York, NY, Counsel on Jurisdiction (Lee Gelernt, Cecillia Wang, and Michael J. Wishnie, on the brief), for Petitioners-Appellees Mojica, No. 97-2599, and Navas, No. 97-2600.

Scott A. Rosenberg, Director of Litigation, Civil Appeals & Law Reform Unit, New York, NY, and Manuel D. Vargas, New York, NY, for Petitioners-Appellee Navas, No. 97-2600.

Scott Dunn, for Zachary W. Carter, United States Attorney for the Eastern District of New York, New York, NY (Deborah B. Zwany and Varuni Nelson, Assistant United States Attorneys, Mary Elizabeth Delli-Pizzi, Special Assistant United States Attorney, and Quynh Vu, Office of Immigration Litigation, United States Department of Justice, on the brief), for Respondents-Appellants, Nos. 97-2599, 97-2600.

Gerald L. Neuman and Lenni B. Benson, New York, NY, on behalf of Law Professors filing as amici curiae, for Petitioners-Appellees Mojica, No. 97-2599, and Navas, No. 97-2600.

Before: McLAUGHLIN and CALABRESI, Circuit Judges, and OWEN, District Judge. [*]

CALABRESI, Circuit Judge:

These cases concern the scope of federal court jurisdiction to review the legality of deportation orders issued by the Immigration and Naturalization Service (the "INS"). The petitioners before us are legal permanent residents of the United States who have been ordered deported because of their past criminal convictions. They challenge the Attorney General's interpretation of the immigration laws under which they face deportation. While the statutory provisions before us today are new ones, 1 the questions raised by these cases are old. Guided by a century's worth of Supreme Court decisions, we conclude that the question of whether the INS had the legal authority to act as it did is

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within the jurisdiction of the federal courts. And following recent decisions of this Circuit, we hold that this jurisdiction is to be exercised under the general habeas corpus statute, 28 U.S.C. § 2241 (Supp.1998). 2 Because personal jurisdiction over the respondent cited in two of the habeas petitions before us depends on interpretations of New York law as to which we are uncertain, we certify the relevant questions in those cases to the New York Court of Appeals.

I. FACTS & PROCEDURAL HISTORY

  1. Franklin Henderson

    Petitioner Franklin Henderson has been a legal permanent resident ("LPR") of the United States for thirty years. Most members of his immediate family reside in this country, and some of them are citizens. In May 1987, Henderson pled guilty to criminal possession of cocaine in the second degree under New York law. He was sentenced to a prison term of five-years-to-life, and was incarcerated until April 1992. His conviction rendered him deportable under the then-effective provisions of § 241(a)(2)(B)(i) of the INA (codified at 8 U.S.C. § 1251(a)(2)(B)(i) (1994)). In February 1994, the INS initiated deportation proceedings against Henderson.

    At a deportation hearing on May 3, 1994, Henderson conceded that he was deportable under INA § 241, but indicated his intent to apply for a discretionary waiver of deportation pursuant to INA § 212(c) (codified at 8 U.S.C. § 1182(c) (1994)). Since 1952, long-time LPRs like Henderson have been eligible to seek discretionary waivers of deportation or exclusion based on factors such as length of prior residence in the United States, family and personal ties to this country, positive histories of employment and community service, evidence of good character, and (for those persons deportable by reason of having committed a crime) proof of genuine rehabilitation. See 8 U.S.C. § 1182(c) (1994) (added by the Immigration and Naturalization Act of 1952); see also Lovell v. INS, 52 F.3d 458, 461 (2d Cir.1995) (listing factors to be considered in an application for a § 212(c) waiver).

    The first hearing on Henderson's § 212(c) application was held on October 12, 1995. At the hearing, the INS stipulated that, based on the many positive factors in his case, Henderson would warrant § 212(c) relief as a matter of discretion, but raised a question as to whether he was eligible for such relief under then-existing law. At that time, aliens who had served five years or more in prison for an aggravated felony conviction were statutorily ineligible for § 212(c) relief, and the law in this Circuit was unsettled as to whether criminal possession of a controlled substance in the second degree constituted an "aggravated felony." The hearing was adjourned so that the parties could brief the issue.

    On March 22, 1996, the Second Circuit held that criminal possession was not an aggravated felony. See Aguirre v. INS, 79 F.3d 315, 317 (2d Cir.1996). Accordingly, when Henderson's case came before an Immigration Judge ("IJ") on May 2, 1996, the IJ held that Henderson was eligible for § 212(c) relief and granted him a waiver of deportation.

    While Henderson's case was pending, Congress enacted a bill that made substantial changes to the immigration laws. This bill, the AEDPA, took effect on April 24, 1996. Section 440(d) of the AEDPA greatly expanded the range of crimes that rendered aliens statutorily ineligible for § 212(c) relief. Under the new law, a person convicted of criminal possession of a controlled substance in the second degree was rendered ineligible for a § 212(c) waiver.

    The INS took the position that AEDPA § 440(d) should apply retroactively to cases pending on the date of its enactment. The Board of Immigration Appeals ("BIA") rejected this position, ruling that § 440(d) could not be applied retroactively to persons who had applied for § 212(c) relief before the AEDPA's effective date. See In re Soriano, Int. Dec. No. 3289, 1996 WL 426888 (BIA June 27, 1996) ("Matter of Soriano I "). The Attorney General, exercising her statutory authority over the whole of the INS, see 8

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    U.S.C. § 1103(a)(1) (Supp.1998), reversed the BIA and issued an opinion concluding that § 440(d) should be applied retroactively to all pending cases regardless of when the waiver application was made. See Matter of Soriano, Int. Dec. No. 3289, 1996 WL 426888 (Op.Att'y Gen.Feb. 21, 1997) (beginning at * 16) ("Soriano II ").

    On the basis of the Attorney General's ruling in Soriano II, the BIA summarily reversed the waiver of deportation that had been granted to Henderson. Henderson, contending that the Attorney General's interpretation of § 440(d) in Soriano II was incorrect, filed a petition for review of the BIA's decision in this Court on April 1, 1997. See Henderson v. INS, Docket No. 97-4050. That petition is before us today. 3

  2. Saul Navas

    Saul Navas has been a LPR of the United States since he arrived here from Panama in 1987, when he was twelve years old. His entire immediate family lives in this country, either as LPRs or as citizens. He has no close relatives in Panama. On May 2, 1995, Navas was convicted in New York state court as the result of pleading...

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