Brown v. Ashcroft
| Decision Date | 03 March 2004 |
| Docket Number | Docket No. 02-2618. |
| Citation | 360 F.3d 346 |
| Parties | Derrick Barrington BROWN, Petitioner-Appellant, v. John ASHCROFT, Attorney General of the United States; James Ziglar, Commissioner of the Immigration and Naturalization Service; Edward McElroy, New York District Director of the Immigration and Naturalization Service, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Marsha R. Taubenhaus, New York, NY, for Petitioner-Appellant.
Megan L. Brackney, Assistant United States Attorney, New York, N.Y. (James B. Comey, United States Attorney, Kathy S. Marks, on the brief), for Respondents-Appellees.
Before: FEINBERG, KEARSE, and RAGGI, Circuit Judges.
Derrick Barrington Brown appeals from an order of the United States District Court for the Southern District of New York (John S. Martin, Jr., J.), denying his petition, filed pursuant to 28 U.S.C. § 2241, for a writ of habeas corpus. Brown claims that his right to procedural due process was violated when he was not given advance notice that the Immigration and Naturalization Service ("INS")1 would rely on grounds other than those charged in the Notice to Appear for his removal proceedings to challenge his claim that he was eligible for discretionary relief under section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c) (1994). Brown also argues that he is not statutorily barred from seeking section 212(c) relief because at the time he was ordered removed, he had not served at least five years for one or more aggravated felonies. See id. For the reasons set forth below, we reject Brown's arguments and affirm the order of the district court.
Brown, a citizen of Jamaica, was admitted to the United States in August 1992 as a lawful permanent resident. On January 14, 1994, Brown robbed a man at knife-point. Brown was arrested and charged for the robbery. On January 20, 1994, in the New York State Supreme Court, Bronx County, he pleaded guilty to attempted robbery in the second degree. While awaiting sentencing, Brown again attempted robbery on January 27, 1994. In February 1994, Brown pleaded guilty in the same court to a second charge of attempted robbery in the second degree. On March 1, 1994, Brown was sentenced to a one-year term of imprisonment for the first offense and a concurrent term of one to three years for the second offense and was placed in the custody of the New York State Department of Corrections.
On November 4, 1994, Brown absconded from custody. However, he was picked up the same day when he was arrested for robbery. Brown pleaded guilty to robbery in the first degree, and in September 1996 was sentenced by the New York State Supreme Court, Bronx County, to an indeterminate term of six and a half to thirteen years imprisonment. He began serving his sentence on this first degree robbery conviction on October 10, 1996.
In April 1999, the INS served Brown with a Notice to Appear alleging that he was removable pursuant to section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. IV 1998). That section provides that an alien "who is convicted of an aggravated felony at any time after admission is deportable." Id. The term "aggravated felony" includes "a theft offense ... or burglary offense for which the term of imprisonment [is] at least one year," 8 U.S.C. § 1101(a)(43)(G) (Supp. V 1999), as well as an attempt to commit such an offense, id. § 1101(a)(43)(U). The Notice to Appear relied upon Brown's two 1994 attempted robbery convictions as grounds for his removal.
At an immigration hearing in June 2000, Brown, who was represented by an accredited representative who was not a lawyer, conceded that he had been convicted of two aggravated felonies, and that he was therefore removable under section 237(a)(2)(A)(iii). Brown argued, however, that he was eligible for relief under section 212(c) of the INA. Section 212(c) has been interpreted to give aliens in deportation proceedings the right to apply for a discretionary waiver of deportation. See Buitrago-Cuesta v. INS, 7 F.3d 291, 292 (2d Cir.1993). The immigration judge denied Brown's application, holding that section 212(c) relief was not available to Brown because the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Division C of Pub.L. No. 104-208, 110 Stat. 3009-546, had eliminated this relief in removal proceedings. In November 2000, the Board of Immigration Appeals ("BIA") reversed the immigration judge's decision, on the ground that under St. Cyr v. INS, 229 F.3d 406 (2d Cir.2000), aff'd INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), Brown, who pleaded guilty before the enactment of AEDPA and IIRIRA, was eligible to apply for section 212(c) relief. The BIA remanded Brown's case to the immigration judge.
Brown's removal proceedings resumed in February 2001. The INS argued to the immigration judge that section 212(c)'s bar to relief, which provided that discretionary relief was not available to "an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years," 8 U.S.C. § 1182(c) (1994), applied to Brown. In so arguing, the INS relied not on the two 1994 convictions that were the basis for the removal proceedings, but on Brown's 1996 conviction, for which, the INS argued, Brown had served at least five years. Brown was not given any prior notice that the INS would rely on his 1996 conviction in arguing that he was ineligible for section 212(c) relief. When the immigration judge asked him whether he had been incarcerated on that charge since October 1996, Brown replied that he had. Although the time period between the October 1996 incarceration and the date of the hearing was only four years and three months, the INS contended that when Brown was put into custody on the 1996 conviction, he was credited with 705 days of jail time, making his incarceration on that conviction greater than five years. When the immigration judge asked Brown whether he was, in fact, credited with the 705 days, Brown replied that he had been. Based on that computation, the immigration judge found Brown statutorily barred from seeking section 212(c) relief and ordered him removed. Brown appealed, and on May 31, 2001, the BIA summarily affirmed the immigration judge's decision.
In November 2001, Brown filed the petition for writ of habeas corpus now before us on appeal. Acting pro se, Brown made three arguments in his petition. First, he argued that under St. Cyr, he was eligible to apply for section 212(c) relief. Second, he claimed that he was not barred from applying for section 212(c) relief because when the INS began removal proceedings against him he had not been incarcerated for five years. Third, Brown contended that his constitutional rights were violated because he was not given notice that the INS would rely on his 1996 conviction to challenge his section 212(c) eligibility, and he therefore did not have a chance to prepare a defense.
In August 2002, the district court denied Brown's petition in a memorandum opinion. The basis of its ruling was that while Brown was entitled to seek section 212(c) relief under St. Cyr, he was nevertheless statutorily barred from such relief because when Brown's order of deportation became final, he had served more than five years in prison on one or more aggravated felony convictions. See Buitrago-Cuesta, 7 F.3d at 296 (). The district court did not address Brown's due process argument.
Brown appealed, and in February 2003 this court sua sponte appointed counsel for him. We asked the parties to brief the issue whether Brown's due process rights were violated by the immigration judge's denial of Brown's section 212(c) application on the basis of the 1996 conviction, even though it was not charged in the Notice to Appear that the INS had served on Brown.
On appeal, Brown challenges the immigration judge's decision on the due process ground upon which we requested briefing. In addition, Brown again argues that the statutory bar of section 212(c) does not apply to him because at the time of the removal proceedings he had not served five years on his convictions, but he relies on two new claims to support this contention. First, he argues that for the purposes of his section 212(c) eligibility his sentence should be measured as of his initial removal date, June 2000. He contends that at that time, he had not been incarcerated for at least five years on an aggravated felony conviction because 438 days of the 705 days that the immigration judge at the resumed removal proceedings in February 2001 credited to his 1996 sentence should have been credited to the 1994 sentences. This would mean that in June 2000, he would have served only 4.4 years on the 1996 sentence. Second, Brown argues that his two 1994 convictions cannot be considered aggravated felonies because under the law in force at the time Brown pleaded guilty to those crimes, a theft offense or crime of violence with a one-year sentence was not considered an aggravated felony. 8 U.S.C. § 1101(a)(43)(F), (G) (1994).
We review the merits of Brown's petition de novo. Chrzanoski v. Ashcroft, 327 F.3d 188, 191 (2d Cir.2003).
The right of a lawful permanent resident alien under the Fifth Amendment to due process of law in deportation proceedings is well established. Reno v. Flores, 507 U.S. 292, 306, 113...
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