Cruz Walters v. Reno

• Decision Date: 10 August 1998
• Docket Number: Civil No. 98-1756(JAF).
• Citation: 16 F.Supp.2d 166
• Parties: Arturo De Jesus CRUZ WALTERS, Petitioner, v. Janet RENO, United States Attorney General; Doris Meissner, Commissioner, U.S. Immigration and Naturalization Service; Charles Kirk, District Director, Puerto Rico, U.S. Immigration and Naturalization Service, Respondents.
• Court: U.S. District Court — District of Puerto Rico

16 F.Supp.2d 166

Arturo De Jesus CRUZ WALTERS, Petitioner, v. Janet RENO, United States Attorney General; Doris Meissner, Commissioner, U.S. Immigration and Naturalization Service; Charles Kirk, District Director, Puerto Rico, U.S. Immigration and Naturalization Service, Respondents.

Civil No. 98-1756(JAF).

United States District Court, D. Puerto Rico.

August 10, 1998.

Arturo De Jesus Cruz Walters, Bronx, NY, pro se.

Guillermo Gil, U.S. Atty., Jose Javier Santos Mimoso, Asst. U.S. Atty., Hato Rey, PR, Frank W. Hunger, Asst. Atty. Gen., Linda S. Wendtland, Senior Litigation Counsel, Robbin K. Blaya, Atty., Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for Respondents.

OPINION AND ORDER

FUSTE, District Judge.

This matter is before the court on Arturo de Jesús Cruz Walters' Petition for Writ of Habeas Corpus (Docket Document No. 1) and his Motion for Stay of Deportation (Docket Document No. 2). After careful consideration of the arguments presented by the parties, we DENY both requests for relief.

Petitioner bases his request for a writ of habeas corpus on five grounds. First, petitioner alleges that the Board of Immigration Appeals ("BIA") applied section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), retroactively to him and that, by applying the section retroactively, respondents violated a statutory prohibition on the retroactive application of AEDPA § 440(d). Second, petitioner argues that by applying AEDPA § 440(d) retroactively, respondents are attaching new legal consequences to events completed before the AEDPA's enactment, in contravention of the "judicial default rules" of Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Third, petitioner alleges that by applying AEDPA § 440(d) retroactively, respondents are depriving him of due process of law, in violation of the Fifth Amendment to the United States Constitution, by imposing retroactive consequences without any rational basis. Fourth, petitioner alleges that, by applying AEDPA § 440(d) retroactively, respondents are violating the Ex-Post-Facto Clause of the Constitution. Fifth, petitioner argues that by applying AEDPA § 440(d) to deportation, but not to exclusion proceedings, respondents are denying petitioner equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the United States Constitution.

I. Facts and Procedural History

The petitioner is a native-born citizen of the Dominican Republic. He was admitted to the United States as a lawful permanent resident on or about January 7, 1967, at the age of eleven. For the past thirty-one years, he has continuously resided in the United States. On April 23, 1990, petitioner pled guilty to and was convicted of two counts of criminal sale of a controlled substance. On June 17, 1992, petitioner pled guilty to and was convicted of one count of criminal sale of a controlled substance.

On April 24, 1996, the President signed the AEDPA into law. AEDPA § 404(d) amended Immigration and Nationality Act ("INA") section 212(c). Before the passage of AEDPA § 404(d), INA § 212(c) provided immigration judges with the discretionary authority to grant waivers of deportation to legal permanent resident aliens who were convicted of certain crimes (the crimes committed by petitioner fall into this category) unless they had served prison sentences of more than five years for aggravated felony offenses. Section 440(d) of the AEDPA expanded the restrictions on the availability discretionary waivers for aggravated felons by eliminating the "5-year imprisonment" condition and by rendering other aliens convicted of serious crimes ineligible for consideration for relief.

On July 12, 1996, based on his criminal convictions, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause, charging the petitioner with deportability under INA § 241(a)(2)(A)(iii),¹ as an alien convicted of an aggravated felony, and INA § 241(a)(2)(B)(i),² as an alien convicted of a violation relating to a controlled substance.

At a deportation hearing on August 20, 1996, pursuant to INA § 212(c), an immigration judge pretermitted the petitioner's application for relief and informed petitioner that he was no longer eligible for relief. Petitioner then filed an appeal with the BIA on September 18, 1996. On March 25, 1997, the BIA issued a decision dismissing the petitioner's appeal of an immigration judge's denial of his application for discretionary relief from deportation under INA § 212(c). The Board determined that petitioner was statutorily ineligible for INA § 212(c) relief pursuant to AEDPA § 440(d) and the Attorney General's decision in Matter of Soriano, Int.Dec. 3289 (A.G., Feb. 21, 1997).

II. Jurisdiction

Petitioner challenges the BIA's deportation order through this petition for a writ of habeas corpus. 28 U.S.C. § 2241. Petitioner did not have the option of directly appealing the order because AEDPA 440(a) bars such appeals.³ In Goncalves v. Reno, 144 F.3d 110 (1st Cir.1998), the Court of Appeals for the First Circuit held that, notwithstanding the exclusive statutory scheme for judicial review of final exclusion, deportation, and removal orders, the district courts may properly exercise habeas jurisdiction under 28 U.S.C. § 2241 to review a pure issue of law presented in a criminal alien's challenge to such orders. Hence, we properly have jurisdiction to review this petition.

While the government notes that it has objected to the First Circuit's holding in Goncalves, it recognizes that the Goncalves decision is controlling and does not object to our exercise of jurisdiction.

III. Retroactivity

Four of petitioner's five claims rely on a finding that AEDPA 440(d) was retroactively applied to petitioner; therefore, we first address the issue of retroactivity. In Goncalves v. Reno, the United States Court of Appeals for the First Circuit held that the Attorney General incorrectly construed the amendments made by AEDPA § 440(d) to apply to aliens who had INA § 212(c) applications pending on the date of the AEDPA's enactment. In so doing, the court reversed the Attorney General's decision in Matter of Soriano, Int.Dec. 3289 (A.G., Feb. 21, 1997), in which the Attorney General had held that Congress intended to apply AEDPA § 440(d) to all cases, including those where an INA § 212(c) application was already pending at the time of the AEDPA's enactment. While the decision in Goncalves affects those individuals whose petitions were pending when AEDPA was enacted, it remains silent as to the treatment of those individuals who, like petitioner, committed a crime before enactment of the AEDPA, but did not file an application until after the enactment.

Petitioner contends that he is similarly situated to the alien in Goncalves and that AEDPA § 440(d) should not be applied to him because such an application would be retroactive. We disagree. In Goncalves, the Court of Appeals for the First Circuit was faced with a situation where an alien had filed an application for INA § 212(c) relief before the enactment of the statute. Then, while his application was pending, section 404(d) of the AEDPA became law and the Attorney General applied the new statute to the pending application. Conversely, in the present case, petitioner did not file an application before the statute was passed; therefore, the decision in Goncalves is not controlling in this case.

In Barreiro v. Immigration and Naturalization Service, 989 F.2d 62 (1st Cir.1993), the Court of Appeals for the First Circuit decided that the Immigration Act of 1990 precluded an alien, who was convicted of an aggravated felony and who had served a term of at least five years for an aggravated felony, from receiving a waiver of deportation, even though the alien had committed the felony before passage of the Immigration Act of 1990. The situation in Barreiro is parallel to the situation faced by petitioner. At the time both petitioners' were: convicted of crimes, the law allowed discretionary INA § 212(c) waivers for persons in their position. However, in both situations, before each petitioner filed an application for a waiver, Congress changed the law, removing the possibility of waiver. Thus, in Barreiro, the Court of Appeals for the First Circuit upheld the application of an amendment limiting INA § 212(c) relief in a case where the crime was committed prior to the amendment's enactment. Accordingly, the fact that petitioner's disqualifying conduct occurred before enactment of the AEDPA does not prevent its application to petitioner. Therefore, we disagree with petitioner's contention that AEDPA § 440(d) was applied retroactively, and DENY petitioner's first four claims.

IV. Equal Protection

Petitioner argues that application of AEDPA § 440(d) to legal permanent residents who are deportable under 8 U.S.C. § 1251(a)(2)(B) denies petitioner equal protection of the law as guaranteed by the Due Process Clause of the Fifth Amendment. The only way to understand petitioner's argument is to place it in the context of the landscape of the current immigration law.

The Immigration and Naturalization Act, 8 U.S.C. § 1103, identifies two broad categories of aliens that are not allowed to reside in the United States: deportable aliens and excludable aliens. See Landon v. Plasencia, 459 U.S. 21, 25-26, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) (explaining the difference between excludable and deportable aliens). Deportable aliens, as defined by 8 U.S.C. § 1227, are those aliens who live in the United States but who may be deported. Excludable aliens, as defined by 8 U.S.C. § 1182(a), are foreign nationals who are trying to enter the United States, and whom the Attorney General has reason to exclude.

When INA § 212(c) was originally enacted, it was interpreted to provide for different...