Dipeppe v. Quarantillo

• Citation: 337 F.3d 326
• Decision Date: 28 July 2003
• Docket Number: No. 01-4096.,No. 01-4043.,01-4043.,01-4096.
• Parties: Rita DIPEPPE v. Andrea QUARANTILLO, District Director of the New Jersey office of the Immigration and Naturalization Service; Ralph Green, Warden, Hudson County Correctional Facility and the Immigration and Naturalization Service Andrea Quarantillo, Ralph Green, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 326

337 F.3d 326

Rita DIPEPPE v. Andrea QUARANTILLO, District Director of the New Jersey office of the Immigration and Naturalization Service; Ralph Green, Warden, Hudson County Correctional Facility and the Immigration and Naturalization Service Andrea Quarantillo, Ralph Green, Appellants.

No. 01-4043.

No. 01-4096.

United States Court of Appeals, Third Circuit.

Argued November 4, 2002.

Filed July 28, 2003.

Steven A. Morley, (Argued), Bagia & Morley, Philadelphia, PA, for Appellee.

Audrey Benison, United States Department of Justice, Office of Immigration Litigation, Washington, DC, Margaret Perry, Audrey B. Hemesath (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Appellants.

Before BECKER,^* Chief Judge, McKEE and HILL,^** Circuit Judges.

OPINION OF THE COURT

McKEE, Circuit Judge.

The Immigration and Naturalization Service appeals the district court's determination that § 212(h) of the Immigration and Nationality Act ("INA")¹ violates the equal protection component of the 5th Amendment's Due Process Clause. In her cross-appeal, Rita Dipeppe challenges the District Court's ruling that she is not entitled to seek relief from removal under INA § 212(c).² For the reasons that follow, we will reverse the District Court's order as to § 212(h) and affirm it as to § 212(c).

I. INA §§ 212(h) AND 212(c)

INA § 212(h) previously gave the Attorney General the discretion to waive an alien's inadmissibility for crimes of moral turpitude if an alien was a spouse, parent, or child of a United States citizen or permanent resident alien, and the alien seeking the waiver could demonstrate that denial of admission would cause extreme hardship to the citizen or permanent resident alien. INA § 212(h)(1)(B). However, Congress amended § 212(h) in 1996. That provision of the INA now removes this discretion in the case of aliens who were previously admitted as permanent residents and had either been convicted of an aggravated felony or had not resided in the United States for seven continuous years. INA § 212(h).³ The statute applies only to aliens who have the status of legal permanent resident ("LPR"), it does not apply to non-legal permanent resident aliens ("non-LPR").⁴ Thus, an alien who is a non-LPR may still attempt to have the Attorney General waive eligibility for removal. See De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 637 (3d Cir.2002) (describing statutory distinction); and In re Michel, 21 I & N Dec. 1101, 1104 (B.I.A. 1998)(same).

Prior to repeal, § 212(c) also gave the Attorney General the authority to waive inadmissibility of otherwise deportable or excludable legal aliens. INS v. St. Cyr, 533 U.S. 289, 294, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Although § 212(c) only applied to exclusion proceedings on its face, the Board of Immigration Appeals ("BIA") also allowed any permanent resident alien with lawful unrelinquished domicile of seven consecutive years to apply for a discretionary waiver from deportation. Id. at 295, 121 S.Ct. 2271. If the application was granted, deportation proceedings were terminated and the alien could remain in the United States as a permanent resident. As might be expected, the number of aliens relying upon eligibility for § 212(c) waivers began to increase as Congress broadened the definition of deportable offenses. Id. at 295-96, 121 S.Ct. 2271.

In 1990, Congress amended § 212(c) to preclude relief for anyone convicted of an aggravated felony who had served a term of imprisonment of at least five years. INS v. St. Cyr, 533 U.S. 289, 295-96, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). In 1996, Congress repealed § 212(c) in its entirety by enacting certain provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). Section 212(c) was replaced with a new § 240A which "permits the Attorney General ... in her discretion to cancel removal in certain circumstances, but not when the alien has been convicted of an aggravated felony as defined by the INA." Xu Cheng v. INS, 206 F.3d 308, 312 (3rd Cir.2000) (emphasis added). IIRIRA § 304(b), 110 Stat. 3009-597 (repealing § 212(c)); see also IIRIRA § 304(b), 110 Stat. 3009-594 (creating 8 U.S.C. § 1229(b)).⁵

II. FACTUAL BACKGROUND

Rita DiPeppe is a native and citizen of Italy who was admitted to the United States on September 21, 1955 as an LPR. On August 5, 1992 she pled guilty to aggravated manslaughter after fatally shooting her husband with a handgun.⁶ She was sentenced to a term of twenty-seven years imprisonment with nine years of parole ineligibility. Based on her conviction, the INS issued and served upon DiPeppe an Order to Show Cause ("OSC") and Notice of Hearing dated September 24, 1992. Those documents informed DiPeppe that the INS was leveling deportation charges against her under former INA § 241(a)(2)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii) based upon her conviction for a crime defined as an "aggravated felony" under the INA. However, the INS never filed its OSC or Notice of Hearing with the Immigration Court.⁷

Thereafter, DiPeppe attempted to obtain a waiver of deportation under INA § 212(c) by filing Form I-191 (Application for Advance Permission to Return to Unrelinquished Domicile) with the INS. On November 29, 1995, the New Jersey District Director of the INS denied DiPeppe's application on the merits. The Director concluded that DiPeppe's conviction for aggravated manslaughter precluded the Attorney General's favorable exercise of discretion. DiPeppe's counsel subsequently made several attempts to schedule a hearing with the INS so that her waiver application could be considered by an Immigration Judge.⁸ However, since the INS had not filed its OSC and Notice of Hearing with the Immigration Court, the court did not set a hearing date.

Finally, on August 2, 2000 (eight years after the initial OSC in 1992), the INS issued a Notice to Appear ("NTA"),⁹ in which it again charged DiPeppe with being removable from the United States pursuant to INA § 237(a)(2)(A)(iii) based upon her conviction for an aggravated felony after admission.¹⁰ Based upon that NTA, DiPeppe was taken into INS custody when she was released from prison on her manslaughter charge.

At her ensuing hearing, DiPeppe argued for discretionary relief pursuant to §§ 212(c) and 212(h). However, the Immigration Judge concluded that she had been convicted of, and imprisoned for, an aggravated felony as defined under the INA and that she was therefore not eligible for the discretionary relief she sought See §§ 212(c) and 212(h). On appeal, the BIA affirmed the Immigration Judge's decision and DiPeppe thereafter petitioned the District Court for a writ of habeas corpus staying removal and vacating the final order of removal.

III. DISTRICT COURT PROCEEDINGS

The District Court began its analysis by examining DiPeppe's eligibility for § 212(c) relief.¹¹ The District Court first noted that DiPeppe had already been denied § 212(c) relief by the INS District Director in 1995. However, the court rejected DiPeppe's argument that the delay in prosecuting her removal constituted a due process denial. That claim was based upon DiPeppe's assertion that the delay placed her beyond the five year incarceration limit on discretionary relief that was originally a condition of the favorable exercise of discretion under § 212(c). According to DiPeppe, the delay had improperly precluded her from seeking the remedies she was otherwise entitled to before AEDPA and IIRIRA became law. When she entered her guilty plea, § 212(c) waivers were unavailable only if the alien "had been convicted of an aggravated felony and ... had served a prison term of at least five years for such [felony]." DeSousa v. Reno, 190 F.3d 175, 178 (3rd Cir. 1999) (emphasis added). Thus, the delay in processing her removal resulted in her requesting relief after she had been imprisoned for more than five years.

DiPeppe also argued that, since the INS delayed to the point that she was forced to request discretionary relief after she had already been incarcerated for 5 years, the government should be estopped from relying upon the length of her incarceration to preclude her from being eligible for seeking discretionary relief from removal. The District Court rejected both arguments. As to the latter claim, the court reasoned that, even if DiPeppe was able to prove the traditional elements of estoppel, she could not establish any affirmative misconduct by the government.

The court did, however, agree that the INA's disparate treatment of LPRs and non-LPRs codified in § 212(h) was a violation of the equal protection guarantee embodied in the Due Process Clause of the Fifth Amendment. The court reasoned that there was no rational relationship between any legitimate governmental purpose and the disparate treatment of LPRs and non-LPRs applying for waivers under § 212(h). Accordingly, the court held that the statutory distinction between LPRs and non-LPRs denied DiPeppe due process of law, and she was therefore eligible to seek discretionary relief from removal from the Attorney General. This appeal and cross-appeal followed. The INS appeals the District Court's determination that § 212(h) is a violation of the Fifth Amendment Due Process Clause, and DiPeppe appeals that court's conclusion that she is not eligible to seek relief under § 212(c) as it existed before repeal.

IV. DISCUSSION

Although DiPeppe's equal protection challenge to § 212(h) has some appeal, it is precluded by our holding in DeLeon-Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir. 2002).¹² There, we held that the distinction between LPRs and non-LPRs applying for waivers under § 212(h) survives rational basis inquiry and that provision of the INA is therefore not a violation of the equal protection component of the Fifth Amendment's Due Process clause. DeLeon-Reynoso, 293 F.3d at 640-41. We summarized the alien's...