Drax v. Ashcroft
| Decision Date | 14 November 2001 |
| Docket Number | No. 99 CV 3613(JBW).,99 CV 3613(JBW). |
| Citation | 178 F.Supp.2d 296 |
| Parties | Dave Anthony DRAX, Petitioner, v. John ASHCROFT, as Attorney General of the United States; James Ziglar, as Commissioner of the Immigration and Naturalization Service; Edward McElroy, District Director, Immigration and Naturalization Service, New York District; and the Immigration and Naturalization Service, Respondents. |
| Court | U.S. District Court — Eastern District of New York |
The Legal Aid Society, New York City, By Janet Sabel, Esq., Maria E. Navarro, Esq., Bryan Lonegan, Esq., Ariadna Renteria Torres, Esq., for Petitioner.
Alan Vinegrad, United States Attorney, Eastern District of New York, Brooklyn, NY, By Scott Dunn, Esq., for Respondents.
Table of Contents
I. Introduction ..............................................298
II. Facts .....................................................299
III. Law .......................................................300
A. Exclusion and Deportation ..............................300
B. Discretionary Relief under section 212(c) ..............301
C. Adjustment of Status ...................................303
D. The Gabryelsky System ..................................304
E. Exhaustion of Administrative Remedies ..................305
F. Immediately Available Visa .............................305
IV. Application of Law to Facts ...............................306
A. Failure to Exhaust Administrative Remedies .............306
B. Availability of Gabryelsky Relief ......................306
C. Retroactivity ..........................................307
V. Conclusion ................................................308
An immigrant ordered deported as an aggravated felon seeks a writ of habeas corpus. He has two convictions, one for attempted possession of a firearm and one for a drug sale, which would bar relief. He requests concurrent hearings to resolve both claims. See Matter of Gabryelsky, 20 I. & N. Dec. 750, 1993 WL 495142 (B.I.A.1993) ().
In its Memorandum and Order dated October 3, 2001, the court found that petitioner was qualified for Gabryelsky relief. See Drax v. Reno, 2001 WL 1180678 ("Drax I"). After Drax I, new evidence was produced by the respondent that had not been provided earlier because of the September 11 disruptions to petitioner's files which led to cancellation of a hearing. Based on this new information, petitioner's Gabryelsky claim fails because he apparently does not meet the requirement of an immediately available visa. Drax I also noted that petitioner's deportability from his weapons conviction was based on retroactive application of the statute. That issue was not resolved since it was not then necessary for determination of the case. The petition now succeeds on these constitutional grounds.
The case presents three questions:
(1) May petitioner prosecute this claim in District Court;
(2) Does the petitioner qualify for Gabryelsky relief under both 212(c) and 245; and
(3) Is petitioner qualified for a section 212(c) hearing since his weapon (and drug) conviction predated the legislation making the weapons crime a deportable offense?
The answer to the first and third questions is "yes."
Dave Anthony Drax entered the United States twenty-five years ago at age fifteen. He was granted the status of a lawful permanent resident seventeen years ago in 1984.
Mr. Drax pled guilty in a New York state court to attempted criminal possession of a firearm in the second degree in May 1993. He pled guilty to sale of a controlled substance in the fifth degree in April 1996. Later in April of 1996, Mr. Drax was simultaneously sentenced to one-to-three years for the weapons charge and two-to-four years for the drug charge, sentences to run concurrently.
While Mr. Drax was still incarcerated, the Immigration and Naturalization Service (I.N.S.) commenced deportation proceedings by filing an Order to Show Cause in January of 1997. In July of 1997, Mr. Drax admitted his convictions in a hearing before an immigration judge. He was ordered deported. Upon his release from prison in June of 1998, Mr. Drax was taken into I.N.S. custody.
Mr. Drax was not represented by counsel at the hearing, though he had been granted two adjournments, totaling over four months, to find an attorney. At the immigration hearing, Mr. Drax asked if he was "qualified for any type of waiver."
"That's what we're going into the pleadings for," replied the administrative Judge. After verifying Mr. Drax's convictions, the Judge replied that "there is no relief available to you."
Not surprisingly, given his pro se appearance, Mr. Drax did not specifically request a hearing under section 212(c) or the Gabryelsky method of obtaining a concurrent hearing under both sections 245 and 212(c). He appealed in time from the order of deportation in July 1997.
While the appeal was pending, Mr. Drax, as the son of a naturalized citizen, filed an I-130 form as a prerequisite for applying for adjustment of status. This application was received by the I.N.S. and was noted as received in October 1998.
On May 28, 1999 the Board of Immigration Appeals dismissed Mr. Drax's appeal. In Re Drax, B.I.A. Decision, File # A38736811. In a one-page opinion, the court declined to hear oral argument, and held that Mr. Drax's request for 212(c) relief was barred by the Antiterrorism and Effective Death Penalty Act (AEDPA). Id. The court declined to address any constitutional arguments. Id.
On June 24, 1999, Mr. Drax filed a petition for a writ of habeas corpus in this court seeking review of the deportation order against him. That petition was stayed by joint consent of the parties while closely relevant cases were being decided on appeal.
In April 2000, Mr. Drax married a United States citizen. On May 15, 2000, the I.N.S. received a visa application for Mr. Drax, as an immediate relative, from his new wife. This application was then substituted for Mr. Drax's previously filed I-130 which had been based on the father's citizenship. The priority date of this new application was May 11, 2000; notice of approval of this application was sent to Mr. Drax on March 27, 2001. See Petitioner's Letter, Sept. 4, 2001, Exhibit C.
Prior to 1996, the INA provided for two separate types of proceeding to remove aliens from the country, exclusion and deportation. One difference was in the types of subject aliens. Those physically present in the United States who committed certain acts were subject to deportation. In contrast, those at the country's border were subject to exclusion. Exclusion also applied to some aliens who were physically present in the United States but who were treated legally as if they were at the border — for example, if they had been "paroled" into the country rather than "admitted." See Henderson v. Immigration and Naturalization Service, 157 F.3d 106, 111 n. 5 (2d Cir.1998) ().
In 1996, exclusion and deportation were consolidated into a single process called "removal." Id. Exclusion had been governed by section 212 and deportation by section 241. Despite the consolidation, sections 212 and 241 remain separate even today and each has its own particular list of grounds for removal (these being the former lists of the separate grounds for exclusion or deportation).
Section 212 covers excludable aliens. The pre-1996 version of section 212(a) reads: "[e]xcept as otherwise provided for in this Act, the following describes classes of excludable aliens who are ineligible to receive visas and shall be excluded from admission to the United States." Section 212(a) then lists several categories of excludable aliens. Section 212(a)(2)(A)(i) is the provision excluding drug offenders, and section 212(a)(2)(C) excludes drug traffickers.
Section 241 governs deportation of aliens already present. Section 241(a)(2)(A) provides in relevant part that: "Any alien who is convicted of an aggravated felony at any time after entry is deportable." "Aggravated felony" is a term defined in section 101(a)(43), which includes drug crimes. Section 241(a)(2)(B)(i) also allows deportation of aliens convicted of drug crimes.
Most importantly, section 241(a)(2)(C) makes deportable "any alien who at any time after entry is convicted under any law of purchasing, selling, offering for sale, using, owning, possessing, or carrying, or attempting or conspiring to purchase, sell, offer for sale, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device." This provision allowing for deportation based on firearms offenses was amended in 1994 to include "attempts" to violate firearms law. See section 203(b) of the Immigration and Naturalization Technical Corrections Act of 1994, Pub.L. No. 103-416, 108 Stat. 4305, 4311 ("1994 Act"). (Recall that petitioner pleaded guilty to the attempted possession of a firearm in May of 1993.) Prior to 1994, the language "or attempting to" possess a firearm was not part of the statute. The BIA held that this change affected convictions for attempts even if the plea was taken prior to the amendment. See In Re Clint Saint John, 21 I. & N. Dec. 593, 1996 WL 541374 (B.I.A.1996).
Although Saint John was not mentioned in the recent Supreme Court decision I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), Saint John is now of dubious authority. St. Cyr presents a strong general position against retroactive changes in substantive rights. See St. Cyr, 121 S.Ct. at 2290-91 (). This is discussed in greater depth in Part IV.C, infra.
Between 1952 and 1996, the INA...
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Drax v. Reno
...Drax v. Reno, 2001 WL 1180678, No. 99 CV 3613 (E.D.N.Y. Oct. 3, 2001) ("Drax I"),1 and its superseding opinion in Drax v. Ashcroft, 178 F.Supp.2d 296 (E.D.N.Y.2001) ("Drax II"). I. Drax's Drax, a citizen of Trinidad and Tobago, entered the United States twenty-seven years ago, at age fiftee......