Galicia v. Crawford

• Decision Date: 09 December 2003
• Docket Number: Civil No. 03-1316-JO.
• Parties: Ramon Ledezma GALICIA, Petitioner, v. Phillip C. CRAWFORD, Portland District Director, Bureau of Immigration and Customs Enforcement; et al., Respondents.
• Court: U.S. District Court — District of Oregon

294 F.Supp.2d 1191

Ramon Ledezma GALICIA, Petitioner, v. Phillip C. CRAWFORD, Portland District Director, Bureau of Immigration and Customs Enforcement; et al., Respondents.

Civil No. 03-1316-JO.

United States District Court, D. Oregon.

December 9, 2003.

Stephen W. Manning, Jessica M. Boell, Immigrant Law Group, L.L.P., Portland, OR, for Petitioner.

Kenneth C. Bauman, Assistant United States Attorney, District of Oregon, Portland, OR, for Respondents.

OPINION AND ORDER

ROBERT E. JONES, District Judge.

Petitioner Ramon Ledezma-Galicia moves (# 8) to extend a temporary restraining order for habeas relief (# 6) granted by Judge King on September 24, 2003. Petitioner argues that his imminent deportation for an aggravated felony conviction over fifteen years ago is unlawfully and unconstitutionally retroactive. Petitioner asserts that 8 U.S.C. § 1227(a)(2)(A)(iii) (2003) ("Section 1227"), making an alien deportable for an aggravated felony conviction anytime after admission to the United States, is not explicitly retroactive and therefore he is not deportable. Further, petitioner asserts that applying Section 1227 retroactively violates his due process right to have his alien status in repose.¹

The government responds that the Ninth Circuit in Park v. I.N.S., 252 F.3d 1018 (9th Cir.2001), found that Congress clearly intended that Section 1227 apply retroactively and that doing so was constitutionally valid. The government concedes, however, that the Ninth Circuit has not addressed the retroactive application of Section 1227 since the Supreme Court's most recent consideration of retroactive immigration law in I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). In that case the Supreme Court clarified that there must be a sufficiently "clear indication from Congress that it intended" to apply a statute retroactively. St. Cyr, 533 U.S. at 316, 121 S.Ct. 2271. Applying Section 1227 retroactively without such clear intent could "produce an impermissible retroactive effect for aliens" by impairing vested rights under law existing at the time of petitioner's conviction. Id. at 320, 121 S.Ct. 2271.

I find that in the operation of the statute there is sufficiently clear intent to retroactively apply Section 1227. St. Cyr, 533 U.S. at 316-317, 121 S.Ct. 2271. Applying Section 1227 retroactively does not unfairly alter petitioner's expectations held at the time of his plea agreement. The temporary restraining order is dissolved and petitioner's habeas petition is denied.

BACKGROUND

Petitioner is a native citizen of Mexico and became a permanent resident alien of the United States in February, 1985. In September, 1988, petitioner pleaded guilty in Oregon state court to sodomy in the first degree for the sexual abuse of a minor and was sentenced to eight months imprisonment. At the time of his conviction, petitioner was not eligible for deportation because his sentence was less than one year.² Petitioner served his sentence and continued on with his life in the United States.

In April, 2003, the Bureau of Immigration and Customs Enforcement ("BICE") issued petitioner a Notice to Appear and sought to remove him by mandatory order under Section 1227 for his 1988 conviction. Petitioner disputed the retroactive application of Section 1227 and requested a waiver of deportation under former Section 212(c) of the Immigration and Nationality Act of 1952 ("INA"), Pub.L. No. 82-414, 66 Stat. 163, 187 (former 8 U.S.C. § 1182(c)).

An Immigration Judge upheld the removal order and denied petitioner's request for a waiver. The Board of Immigration Appeals ("BIA") dismissed petitioner's appeal. Petitioner then filed a writ of habeas corpus in this court together with a motion for a temporary restraining order, which Judge King granted on September 24, 2003.³ At a hearing on October 31, 2003, I continued the temporary restraining order and took the matter under advisement.

The BICE seeks to deport petitioner as an "alien who was convicted of an aggravated felony any time after admission."⁴ 8 U.S.C. § 1227(a)(2)(A)(iii). Section 321(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") extended the definition of "aggravated felony" to include "sexual abuse of a minor."⁵ Pub.L. No. 104-208, 110 Stat. 3009-546, 627 (codified at 8 U.S.C. § 1101(a)(43)(A)).

Petitioner concedes that his 1988 conviction qualifies as an aggravated felony under IIRIRA and further concedes that IIRIRA made the "aggravated felony" definition explicitly and lawfully retroactive "regardless of whether the conviction was entered before, on, or after the date of enactment."⁶ IIRIRA § 321(b) (codified at 8 U.S.C. § 1101(a)(43)). However, petitioner disputes whether the retroactive definition necessarily applies to make him deportable for his 1988 conviction.

JURISDICTION

Petitioner exhausted his administrative appeals with BICE and filed a petition for a writ of habeas corpus under 8 U.S.C. § 2241.⁷ The District of Oregon is the proper venue, as petitioner is presently in the custody of the BICE at the Northern Oregon Regional Correctional Center in The Dalles, Oregon.

DISCUSSION

The issue before me is whether Congress intended Section 1227 to be applied retroactively. The Ninth Circuit has held that Section 1227 does apply retroactively. However, that precedent has not been tested against the Supreme Court's retroactivity analysis set forth in St. Cyr.

The Ninth Circuit upheld the retroactive application of Section 1227 in cases decided before the St. Cyr decision. See Park, 252 F.3d at 1025. The Ninth Circuit has not revisited or overruled the reasoning in Park. The parties dispute the effect of St. Cyr on Ninth Circuit case law. Petitioner asserts that Section 1227 is not explicitly retroactive as required by St. Cyr, and therefore he is not deportable despite being properly categorized as an alien with an aggravated felony conviction. The government, in turn, distinguishes St. Cyr and asserts that the retroactivity of Section 1227 is settled law in the Ninth Circuit, as most recently restated in Park.

In Park, the government sought petitioner's removal under Section 1227 for a May, 1996, involuntary manslaughter conviction and three-year sentence. 252 F.3d at 1020. The law at the time of her conviction made aliens with an aggravated felony conviction deportable for sentences of at least five years. Id. at 1025. Section 321(a) of IIRIRA made Park's conviction a deportable offense for an aggravated felony with a sentence of more than one year as defined in 8 U.S.C. § 1101(a)(43)(A). See id. The Ninth Circuit found that "the modified definition of `aggravated felony' applies retroactively to all defined offenses, regardless of the date of conviction" and dismissed Park's petition. Id. (citing Aragon-Ayon v. I.N.S., 206 F.3d 847, 853 (9th Cir.2000)). While Park is the most recent Ninth Circuit case to specifically address Section 1227, the reasoning behind Park's conclusion that Section 1227 applied retroactively was based primarily on the reasoning in Aragon-Ayon.

In Aragon-Ayon, the petitioner appealed his deportablility under Section 1227 for a 1992 conviction for assault with a deadly weapon. 206 F.3d at 849. The Ninth Circuit held "that Congress intended the 1996 [IIRIRA] amendments to make the aggravated felony definition apply retroactively to all defined offenses whenever committed, and to make aliens so convicted eligible for deportation notwithstanding the passage of time between the crime and the removal order." 206 F.3d at 853 (emphasis added). There are two parts to this holding: (1) Congress explicitly intended to apply retroactively the definition of "aggravated felony;" and (2) statutes making aliens deportable for an aggravated felony conviction — like Section 1227 — are thereby applied retroactively.

The Ninth Circuit's analysis in Aragon-Ayon focused, however, only on the first issue, "whether Congress has clearly manifested an intent for the amended definition of aggravated felony to apply retroactively." Id. at 851. The Ninth Circuit appears to have assumed that Section 1227 was implicitly retroactive given that the term "aggravated felony" used in Section 1227 explicitly was made retroactive. That assumption — which I believe to be correct — must be revisited given the "high level of clarity" needed to make a statute retroactive, as articulated in St. Cyr., 533 U.S. at 317, 121 S.Ct. 2271.

St. Cyr analyzed two separate issues with two different standards for statutory intent: the plain statement rule and clear retroactive intent. Congress must make a plain statement of retroactive effect to overcome constitutional restrictions on retroactive legislation. But where a statute's retroactive effect does not touch on constitutionally sensitive areas, the statute must clearly imply retroactive effect and not transgress a due process right to fairness or repose.

In St. Cyr, the respondent pleaded guilty to an aggravated felony in 1996 and at that time became subject to deportation and eligible for a discretionary waiver of deportation. Id. at 314-315, 121 S.Ct. 2271. The following year, IIRIRA went into effect. IIRIRA precluded most removal orders from "judicial review" and repealed the discretionary waiver of deportation formerly available in INA § 212(c).⁸ The government in St. Cyr thus asserted that the court had no habeas jurisdiction for judicial review under 28 U.S.C. § 2241, and that the INA § 212(c) waiver of removal was retroactively repealed. Id. at 298, 121 S.Ct. 2271. The Supreme Court applied the plain statement rule to find that Congress did not explicitly deny habeas jurisdiction — distinguished from "judicial review" as defined in the statute — under § 2241 for removal orders and therefore habeas jurisdiction remained for removal orders. Id. at 314, 121 S.Ct. 2271.

When Congress seeks to legislate on issues having a direct effect on traditional constitutional...