Theodoropoulos v. I.N.S.

• Decision Date: 18 December 2002
• Docket Number: Docket No. 01-2715.
• Citation: 358 F.3d 162
• Parties: Athanasios THEODOROPOULOS, Petitioner-Appellee, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

358 F.3d 162

Athanasios THEODOROPOULOS, Petitioner-Appellee, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant.

Docket No. 01-2715.

United States Court of Appeals, Second Circuit.

Submitted: June 21, 2002. Amended: December 20, 2002.

Superseded: January 12, 2004.

Decided: December 18, 2002.

COPYRIGHT MATERIAL OMITTED

Athanasios Theodoropoulos, pro se, c/o Lori Sherman & Associates, Bearsville, N.Y. (Barry D. Leiwant and Deirdre D. Von Dornum, Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, on supplemental briefs), for Petitioner-Appellee.

John C. Cunningham, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice (Robert D. McCallum, Jr. and Peter D. Keisler, Assistant Attorneys General, Donald E. Keener, Deputy Director, and Linda S. Wendtland, Assistant Director, on the briefs), Washington, DC, for Respondent-Appellant.

Katherine Goldstein, Wilmer, Cutler & Pickering, New York, NY, for Amici Curiae The New York State Defenders Association, The Legal Aid Society of the City of New York, and The New York State Association of Criminal Defense Lawyers in support of Petitioner-Appellee.

Before: WALKER, Chief Judge, WINTER and F.I. PARKER, Circuit Judges.

F.I. PARKER, Circuit Judge, and JOHN M. WALKER, JR., Chief Judge.¹

The Immigration and Naturalization Service ("INS") appeals from the September 21, 2001 judgment of the United States District Court for the Western District of New York (Richard J. Arcara, District Judge), which denied the INS's motion to dismiss petitioner-appellee Athanasios Theodoropoulos's petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241, and granted the writ for the limited purpose of remanding Theodoropoulos's case to the Board of Immigration Appeals ("BIA") for further proceedings. In his petition, Theodoropoulos sought release from detention, a stay of deportation, and an order vacating his deportation order, claiming that because he was convicted before the passage of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-1323, 110 Stat. 1214 ("AEDPA"), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 ("IIRIRA"), he should have been eligible for consideration of discretionary relief pursuant to § 212(c) of the Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1101 et seq. ("INA"). See 8 U.S.C. § 1182(c) (West 1996) (codification of former § 212(c)) (repealed as of April 1, 1997 by IIRIRA § 304(b)).

We conclude that Theodoropoulos failed to exhaust his administrative remedies and, thus, that the district court lacked jurisdiction to entertain the petition under 8 U.S.C. § 1252(d). Accordingly, we reverse the judgment of the district court in its entirety and remand for entry of judgment dismissing the petition.

I. FACTUAL BACKGROUND

Habeas petitioner Athanasios Theodoropoulos, a native and citizen of Greece, was admitted to the United States as an immigrant on May 15, 1969. On March 29, 1988, Theodoropoulos was convicted in the United States District Court for the Eastern District of Pennsylvania, after a jury trial, of drug conspiracy, distribution of cocaine, possession of cocaine with intent to distribute, and aiding and abetting. See United States v. Theodoropoulos, 866 F.2d 587 (3d Cir.1989). The court imposed a twenty-five-year term of imprisonment.

A. INS Removal Proceedings

Theodoropoulos was granted parole by the United States Parole Commission on August 26, 1999, after almost twelve years of incarceration. The INS immediately took custody of him and began deportation proceedings. On September 9, 1999, Theodoropoulos appeared before an Immigration Judge ("IJ") for a removal hearing, who recounted the INS's asserted basis for removal and explained the nature of the proceedings to Theodoropoulos. Theodoropoulos told the IJ that he was requesting relief from deportation pursuant to, inter alia, INA § 212(c), 8 U.S.C. § 1182(c) (West 1996), which permitted an IJ to issue a discretionary waiver of deportation under certain circumstances.² The IJ adjourned the proceedings until the next morning to allow Theodoropoulos to consider the evidence submitted by the INS in support of removal.

At the hearing the following day, the IJ issued an oral decision in which he held that § 212(c) had been repealed by IIRIRA, which had replaced it with INA § 240A, entitled "Cancellation of Removal." The IJ further held that Theodoropoulos was statutorily ineligible for relief under § 240A because he had been convicted of an aggravated felony. See 8 U.S.C. §§ 1229b(a) & (b)(1)(c) (codifying § 240A); see also IIRIRA, § 304(b) (repealing § 212(c)). After concluding that Theodoropoulos was ineligible for any other form of relief, the IJ ordered his removal to Greece. The IJ explained the consequences of his ruling as follows:

Q: I have found that you are statutorily ineligible for any form of relief. I have found you are removable as charged and I have ordered your removal to Greece. If you disagree with my decision, sir, you may appeal it to a higher court, to the Board of Immigration Appeals, or if you are satisfied with my decision, you may accept it today as final. Do you wish to appeal my decision, sir, or accept it?

A: No, Your Honor, I want to be removed as soon as possible to my country.

Q: So, you accept my decision as final?

A: Yes, yes, I do.

Q: Government?

A: It's final, Judge.

....

Q: Before I go off the record, though, sir, I want to alert you to a couple of things. First of all, because my decision is final today, you are no longer a permanent resident of the United States. Also, because of your drug conviction, which is classified as an aggravated felony, you could never live in the United States in the future.

A: Right.

....

Q: If, at any time in the future, you are found in the United States ... without having first obtained... advanced permission, you will have committed a Federal crime, which carries a maximum sentence of 20 years in prison. Do you understand?

A: I am aware of it, Your Honor.

The IJ's order of removal was issued that same day on a pre-printed form that contained a line at the bottom reading, "Appeal: Waived/Reserved Appeal Due By:". In the order, the district court had crossed out the words, "Reserved Appeal Due By:," leaving only the words "Appeal: Waived" unmarked.

On October 4, 1999, Theodoropoulos, then detained at the INS Federal Detention Facility in Batavia, New York, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, in the Western District of New York as well as a notice of appeal to the BIA from the IJ's September 10, 1999 removal order. Despite these filings, the INS deported Theodoropoulos on October 5, 1999.

In a letter dated October 12, 1999, the BIA rejected Theodoropoulos's appeal on procedural grounds. A week later, the Immigration Court sent a letter to Theodoropoulos, informing him that based upon a review of his file, the court had found that Theodoropoulos had waived his right to appeal the IJ's decision, and that because of this waiver, the INS had considered his removal order final and had deported him. See 8 C.F.R. § 3.39 (West 1999) ("Except when certified to the [BIA], the decision of the Immigration Judge becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken whichever occurs first."); 8 C.F.R. § 3.38 (West 1999) ("A Notice of Appeal ... may not be filed by any party who has waived appeal.").

B. District Court Proceedings

Theodoropoulos's habeas petition proceeded in the federal district court. On January 14, 2000, the district court ordered the INS to file an answer to the petition before March 15, 2000. In lieu of an answer, the INS filed a motion to dismiss the petition on various jurisdictional grounds.

Pursuant to 28 U.S.C. § 636(b)(1)(B), the district court assigned the matter to United States Magistrate Judge H. Kenneth Schroeder, Jr. On February 18, 2001, Judge Schroeder filed a Report and Recommendation ("R & R") recommending that the motion to dismiss be denied and that the matter be remanded to the BIA. In the R & R, Judge Schroeder incorrectly found that Theodoropoulos was convicted on drug-related charges on the basis of a guilty plea, rather than following a jury trial. Based in part on this factual error, Judge Schroeder recommended that the district court apply the "constitutional exception" to the rule requiring a habeas petitioner to exhaust his or her administrative remedies before seeking relief in a federal district court, see Johnpoll v. Thornburgh, 898 F.2d 849, 850-51 (2d Cir.1990) (per curiam), so that the court could consider Theodoropoulos's assertion that retroactive application of the IIRIRA provision repealing § 212(c) — and eliminating the possibility of discretionary relief from deportation for someone like Theodoropoulos — violated his due process rights. The R & R advised the district court to deny the INS's motion to dismiss and to grant Theodoropoulos's habeas petition to the extent of remanding the case to the BIA for review in light of this court's decision in St. Cyr v. INS, 229 F.3d 406, 421 (2d Cir.2000) ("St. Cyr I"), which held that the repeal of § 212(c) by IIRIRA does not apply to aliens who pled guilty or nolo contendere prior to the enactment of IIRIRA.

The INS filed objections to the magistrate's R & R arguing that St. Cyr I did not apply to aliens who, like Theodoropoulos, were convicted after a jury trial. Despite the INS's objections, the district court, without correcting the magistrate's erroneous factual finding, adopted the R & R, denied the motion to dismiss, and granted Theodoropoulos's petition for the limited purpose of remanding the case to the BIA for further proceedings in line with the Supreme Court's intervening affirmation of St. Cyr. See INS v. St. Cyr, 533 U.S. 289, 121...