Song v. I.N.S.
| Decision Date | 10 February 2000 |
| Docket Number | No. CV 00-00989-GAF (EE).,CV 00-00989-GAF (EE). |
| Citation | 82 F.Supp.2d 1121 |
| Court | U.S. District Court — Central District of California |
| Parties | Young Hak SONG, Plaintiff, v. IMMIGRATION and NATURALIZATION SERVICE (INS); Mira Loma Detention Center of INS; Thomas Schiltgen, District Director of the INS; Doris Meissenger, Commissioner of the INS; Janet Reno, Attorney General of the United States; Leonard Kovensky, Assistant District Director of Deportation and Detention of the INS; and Deportation Officer Majorga, Defendants. |
Nancy E. Miller, Robert L. Reeves & Assoc., Pasadena, CA, Sung U. Park, Los Angeles, CA, for plaintiffs.
Katherine Hikida, AUSA, Alejandro Mayorkas, U.S. Atty., Los Angeles, CA, for defendants.
ORDER ISSUING STAY OF DEPORTATION
This motion for a stay of deportation arises in connection with Young Hak Song's petition for a writ of habeas corpus. His petition challenges the conclusion by the Immigration and Naturalization Service ("INS") that he cannot be considered for discretionary relief from deportation because he was convicted of an "aggravated felony." Petitioner challenges this decision on two grounds. First, Petitioner contends that the identification of his 1996 conviction as an "aggravated felony" is impermissibly retroactive because it was not an "aggravated felony" at the time of conviction. Second, Petitioner contends that the denial of consideration for Immigration and Naturalization Act ("INA") § 212(h) relief violates equal protection even if he was convicted of an "aggravated felony," because illegal immigrants convicted of aggravated felonies are eligible for consideration while legal immigrants convicted of the same crimes are not. Petitioner moves for a stay of deportation while this Court considers these challenges to the INS's conclusions.
In opposition, the government first contends that Petitioner's sole avenue for judicial review of the deportation order is in the court of appeals. As such, the government contends that this Court is without jurisdiction to consider Petitioner's application for a writ of habeas. The government next contends that the application of the definition of "aggravated felony" is not impermissibly retroactive because Congress explicitly provided that the application of the definition should be retroactive. Finally, the government contends that there is no equal protection violation in considering illegal but not legal aliens for discretionary relief; the government contends that it is rational to punish those who have violated the trust imparted by the grant of legal residence.
The Court agrees that the normal avenue for judicial review of a deportation order consists of an appeal to the court of appeals. However, the Court notes that, in this case, Petitioner was convicted of a 1998 firearms offense and therefore cannot appeal to the court of appeals even to challenge the application of the "aggravated felony" definition to his 1996 conviction. Because no other avenue for judicial review exists, Ninth Circuit precedent provides that Petitioner may bring his challenge to the final order of deportation via a habeas petition in this Court.
Turning to the merits, the Court notes that Petitioner did not raise any challenge to the retroactive application of the definition of "aggravated felony" before the Immigration Judge or the Board of Immigration Appeals ("BIA"). It would therefore appear that Petitioner waived that argument by failing to exhaust it. Even if he had not waived it, however, it is clear that Petitioner did not rely upon the availability of discretionary relief when he pled guilty to his original offenses in 1996. As such, the application of the definition of "aggravated felony" in his case is not unconstitutionally retroactive. Petitioner has not demonstrated a clear entitlement to relief on this ground.
However, on an issue of first impression,1 the Court does find merit in Petitioner's equal protection challenge to INA § 212(h) relief. In 1996, Congress amended the Immigration and Naturalization Act with the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). Pursuant to the IIRIRA, a legal immigrant convicted of an "aggravated felony" cannot be considered for discretionary relief under INA § 212(h). At the same time, however, an illegal immigrant convicted of an "aggravated felony" may be considered for discretionary relief.
Because no suspect class is involved, the Court reviews this distinction on a rational basis standard. Particularly in light of Congress's broad discretion in the area of immigration, the Court would uphold the distinction if the Court could conceive of any rational basis for the distinction. Nevertheless, the Court has reviewed the government's proposed justification and considered the issue on its own, and it finds that there is no rational basis for conferring a benefit on an illegal alien that is denied to legal resident aliens. Accordingly, the Court finds that the INS has clearly violated the Constitution in reaching a final order to deport Petitioner, and the Court will stay the deportation.
Petitioner was born on February 10, 1974 in Korea. Petitioner entered this country on June 10, 1981 as an immigrant.
On March 4, 1996, Petitioner was charged in Orange County with forgery and possession of stolen property. On June 7, 1996, Petitioner pled guilty to those charges. Although Petitioner alleges that he was not informed of any possible immigration consequences until after he pled guilty, Petitioner initialed and signed a form that said "I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."2 Petitioner alleges that, after his guilty plea, he asked his public defender if he was in danger of deportation, and the public defender replied "Nah, don't worry about it."3
At the time Petitioner pled guilty, Petitioner's crimes would not have constituted an "aggravated felony" unless punished with more than five years imprisonment.
Petitioner was given a suspended sentence of three years imprisonment. Among the conditions of that suspension was that Petitioner spend 365 days in the county jail.
On December 18, 1997, Petitioner was apparently caught in Los Angeles County in possession of a firearm. This possession constituted both a violation of the terms of his probation on the previous conviction and an independent crime, since Petitioner was a felon in possession of a firearm.
On January 20, 1998, Petitioner was charged in Los Angeles County with being a felon in possession of a firearm. It appears to the Court that Plaintiff pled guilty to this second offense on March 11, 1998 and was sentenced to 16 months confinement. There is no evidence in the record that would reveal whether or not Petitioner was provided any warning of any immigration consequence before this guilty plea.4 The abstract of judgement indicates that the 16 month confinement was to run concurrently with any confinement in the Orange County case.
On May 1, 1998, the court in Orange County found Petitioner in violation of his probation for having possessed a firearm while on probation. Petitioner was sentenced to 16 months as a result of the probation violation.5
Following his release from state custody in approximately November, 1998, Petitioner was taken into INS custody. Petitioner was served with a Notice to Appear ("NTA") by the INS and charged with being in violation of INA § 237(a)(2)(C), which provides for the deportation of an alien who is convicted of possessing a firearm in violation of any law. 8 U.S.C. § 1227(a)(2)(C).
On November 24, 1998, Petitioner admitted the allegations on the Notice to Appear. Such admissions made him eligible for deportation.
As an alien eligible for deportation, Petitioner sought to be considered for discretionary relief from deportation pursuant to INA § 240A and INA § 212(h). The first provision provides that the Attorney General may, in her discretion, allow relief from deportation for long-term residents of the United States. 8 U.S.C. § 1229b(a). The second provides that the Attorney General may, in her discretion, allow relief from deportation if such deportation would cause extreme hardship to residents remaining in the United States. 8 U.S.C. § 1182(h)(1)(B). However, neither provision is available to those convicted of an "aggravated felony." 8 U.S.C. §§ 1182(h)(2) and 1229b(a).
As defined after the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") of 1996, a crime of theft or a crime of forgery will constitute an aggravated felony if punished by a sentence of more than a year in custody. See INA § 101(a)(43)(G) (theft); INA § 101(a)(43)(R) (forgery). The INS contended that Petitioner's 1996 conviction constituted conviction of an "aggravated felony" because Petitioner was sentenced to more than a year in custody for the crimes of theft and forgery. As a result, notwithstanding the fact that Petitioner would have been eligible for consideration for discretionary relief if convicted solely of the 1998 firearms charge, the INS contended that Petitioner was not eligible for consideration because of the previous 1996 conviction.
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