Blake v. Carbone

• Decision Date: 01 June 2007
• Docket Number: Docket No. 05-2988-ag(L). Docket No. 05-4188-ag(con). Docket No. 05-2643-ag(L). Docket No. 05-4382-ag(con). Docket No. 05-4084-ag(L). Docket No. 05-4432-ag(con). Docket No. 05-3473-ag.
• Citation: 489 F.3d 88
• Parties: Leroy BLAKE, Petitioner, v. John P. CARBONE, Field Officer Director of New York City, U.S. Immigration and Customs Enforcement, Michael Chertoff, Secretary, Department of Homeland Security, Michael J. Garcia, Assistant Secretary (Designee), United States Immigration and Customs Enforcement, Department of Homeland Security, United States Immigration and Customs Enforcement, Respondents; Errol Anthony Foster, also known as Errol Foster, also known as Errol A. Foster, Petitioner, v. Alberto Gonzales, Attorney General, Respondent; Aundre Singh, Petitioner, v. Alberto Gonzales, Attorney General of the United States, Michael Chertoff, Secretary of Department of Homeland Security, Respondents; Ho Yoon Chong, Petitioner, v. Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

489 F.3d 88

Leroy BLAKE, Petitioner, v.John P. CARBONE, FieldOfficerDirector of New York City, U.S. Immigration and Customs Enforcement, Michael Chertoff, Secretary, Department of Homeland Security, Michael J. Garcia, AssistantSecretary (Designee), United States Immigration and Customs Enforcement, Department of Homeland Security, United States Immigration and Customs Enforcement, Respondents;

Errol Anthony Foster, also known as Errol Foster, also known as Errol A. Foster, Petitioner, v.Alberto Gonzales, Attorney General, Respondent;

Aundre Singh, Petitioner, v.Alberto Gonzales, Attorney General of the United States, Michael Chertoff, Secretary of Department of Homeland Security, Respondents;

Ho Yoon Chong, Petitioner, v.Attorney General of the United States, Respondent.

Docket No. 05-2988-ag(L). Docket No. 05-4188-ag(con). Docket No. 05-2643-ag(L). Docket No. 05-4382-ag(con). Docket No. 05-4084-ag(L). Docket No. 05-4432-ag(con). Docket No. 05-3473-ag.

United States Court of Appeals, Second Circuit.

Argued: February 15, 2007.

Decided: June 1, 2007.

Matthew L. Guadagno, Bretz & Coven LLP, New York, NY (Kerry W. Bretz, Jules E. Cove, on the brief), for PetitionersLeroy Blake and Ho Yoon Chong.

Lewis J. Liman, Cleary Gottlieb Steen & Hamilton LLP, New York, NY (Michael M. Rosencraft, on the brief), for PetitionerErrol A. Foster.

Benoit Quarmby & Daniel M. Segal, Shearman & Stearling, New York, NY, for PetitionerAundre Singh.

Jennifer M. Green, Center for Constitutional Rights, New York, NY (Shayana Kadidal, William J. Aceves, Beth Stephens, on the brief), amicus curiae in support of Petitioners.

Dione M. Enea, Assistant United States Attorney on behalf of Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York(Scott Dunn, Assistant United States Attorney, on the brief), for Respondents.

Margaret M. Kolbe, Assistant United States Attorney on behalf of Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York(Scott Dunn, Assistant United States Attorney, on the brief), for Respondents.

Before: B.D. PARKER, WESLEY, HALL, Circuit Judges.

WESLEY, Circuit Judge.

At issue is a judicial amendment to an unconstitutional statute now repealed.In most cases, repeal would obviate judicial review.But this statute, and its judicial alteration, continue to affect the lives of lawful permanent residents whose criminal convictions imperil their stay in the United States.Former § 212(c) of the Immigration and Nationality Act("INA"), the statutory provision at issue, provided the Attorney General with discretion to waive the exclusion of certain lawful permanent residents who sought reentry to the United States after a temporary departure ("excludees").See8 U.S.C. § 1182(c)(repealed 1996).The plain language of § 212(c) expressly precluded from its scope lawful permanent residents who never left the country ("deportees").Nonetheless, in Francis v. INS,532 F.2d 268(2d Cir.1976), we held the denial of a § 212(c) waiver to deportees violated the Due Process Clause of the Fifth Amendment to the Constitution.The constitutional problem was remedied with a revision of § 212(c), extending the availability of a § 212(c) waiver to deportees who were similarly situated to excludees.Id. at 273.In doing so, we gave teeth to the admonition of Judge Learned Hand: "It is well that we should be free to rid ourselves of those who abuse our hospitality; but it is more important that the continued enjoyment of that hospitality once granted, shall not be subject to meaningless and irrational hazards."Di Pasquale v. Karnuth,158 F.2d 878, 879(2d Cir.1947).

Petitioners sought a waiver of deportation under the Francis alteration of § 212(c).The Board of Immigration Appeals("BIA") determined they were ineligible for the waiver because their particular ground of deportation lacked a sufficiently similar ground of exclusion.Bound by the equal protection principle enunciated in Francis,we conclude that this was error; each petitioner's eligibility for a § 212(c) waiver must turn on whether similarly situated lawful permanent residents in removal proceedings are given similar treatment.Accordingly, we grant the petitions for review and remand the cases to the BIA to consider whether petitioners' particular aggravated felony offenses could form the basis of exclusion under § 212(a) as a crime of moral turpitude.

Background

I.Petitioners' Procedural History

A.PetitionerLeroy Blake

Leroy Blake entered the United States as a lawful permanent resident in 1987.Five years later he pleaded guilty in New York state court to first degree sexual abuse of a minor.SeeN.Y. PENAL LAW § 130.65(3).He was sentenced to five years of probation.

In August 1999, the Immigration and Naturalization Service ("INS") served Blake with a notice to appear in immigration court.¹The notice asserted his deportability for commission of an aggravated felony after admission, see8 U.S.C. § 1227(a)(2)(A)(iii), to wit, "murder, rape, or sexual abuse of a minor,"id.§ 1101(a)(43)(A).The Immigration Judge ("IJ") found sufficient proof of Blake's conviction and held him ineligible for a § 212(c) waiver, under the supposition that Congress retroactively repealed the statute.Blake appealed to the BIA, who ordered a remand after INS v. St. Cyr,533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347(2001), where the Supreme Court held Congress did not intend a retroactive repeal of § 212(c), id. at 326, 121 S.Ct. 2271.

Considering the merits of Blake's claim on remand, the IJ granted him a § 212(c) waiver of deportation.The INS appealed to the BIA.The BIA, agreeing with the INS, issued a published decision holding Blake ineligible for a § 212(c) waiver for lack of a counterpart ground of exclusion.SeeIn re Blake,23 I. & N. Dec. 722, 729(B.I.A.2005).Blake sought reconsideration, claiming the BIA failed to apply the rule of lenity to § 212(c).The BIA denied his motion in July 2005.Review before this Court followed.

B.PetitionerHo Yoon Chong

Ho Yoon Chong entered the United States as a lawful permanent resident in 1979.Some time between 1993 and 1994, he pleaded guilty to one count of federal racketeering.See18 U.S.C. § 1962(c).The United States District Court for the Eastern District of New York sentenced him to five years of probation and other conditions not relevant here.

In July 1998, the INS served Ho Yoon Chong with a notice to appear in immigration court.The notice asserted his deportability for commission of an aggravated felony after admission, see8 U.S.C. § 1227(a)(2)(A)(iii), because his offense "related to racketeering,"id.§ 1101(a)(43)(J).The IJ found sufficient evidence of his conviction and held him ineligible for a § 212(c) waiver, believing the statute had been repealed retroactively.The BIA remanded the matter after St. Cyr.

On remand, the IJ held Ho Yoon Chong ineligible for a § 212(c) waiver because his ground of deportation lacked a comparable ground of exclusion.Ho Yoon Chong appealed to the BIA in October 2002.The BIA summarily affirmed the IJ's decision in December 2004.Ho Yoon Chong timely sought review with this Court.

C.PetitionerErrol Foster

Errol Foster entered the United States as a lawful permanent resident in 1981.In September 1990, he entered a guilty plea in New York state court to first degree manslaughter, seeN.Y. PENAL LAW § 125.20(1), and was sentenced to a term of six to eighteen years in prison.

In May 2000, the INS served Foster with a notice to appear in immigration court.The notice charged him with deportation as an alien convicted of an aggravated felony after admission, see8 U.S.C. § 1227(a)(2)(A)(iii), because he committed a "crime of violence,"id.§ 1101(a)(43)(F).The IJ held Foster ineligible for a § 212(c) waiver because he had served more than five years of his sentence.Foster appealed to the BIA.The BIA, relying on Buitrago-Cuesta v. INS,7 F.3d 291(2d Cir.1993), affirmed the IJ's decision in March 2001.²On appeal, we dismissed Foster's appeal for failure to exhaust his administrative remedies.SeeFoster v. INS,376 F.3d 75, 78(2d Cir.2004).

While our decision in that case was pending, Foster filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York.He also filed a motion to reopen with the BIA under the DHS's newly promulgated regulations.See8 C.F.R. § 1212.3.In July 2005, the BIA denied Foster's motion to reopen, finding him ineligible for a § 212(c) waiver because his ground of deportation lacked a counterpart ground of exclusion.Seeid.§ 1212.3(f)(5).Foster's petition for habeas corpus and his petition seeking review of the BIA's denial of his motion to reopen were consolidated before this Court.

D.PetitionerAundre Singh

Aundre Singh entered the United States as a lawful permanent resident in 1979.Seven years later he entered a guilty plea in New York state court to murder in the second degree.SeeN.Y. PENAL LAW § 125.25.The court sentenced him to an indeterminate term of imprisonment of no less than 20 years.

The INS served Singh with a notice to appear in immigration court in November 1997.The notice charged his deportability as an alien convicted of an aggravated felony after admission, see8 U.S.C. § 1227(a)(2)(A)(iii), because he had a "murder, rape, or sexual abuse of a minor" conviction, id.§ 1101(a)(43)(A).The IJ held Singh ineligible for a § 212(c) waiver under the supposition that Congress retroactively repealed § 212(c).Singh appealed to the BIA, arguing his murder conviction predated the Anti-Drug Abuse Act of 1988 ("ADAA"), Pub.L. No. 100-690, 102 Stat. 4181(1988), and thus could not form the basis of his deportation.³The BIA was not persuaded.

Singh filed a motion to reopen with the BIA in September 2003, arguing for a § 212(c) waiver under St. Cyr.The BIA denied his motion, finding it time-barred and...