Drax v. Reno

• Decision Date: 04 August 2003
• Docket Number: Docket No. 02-2047.
• Citation: 338 F.3d 98
• Parties: David Anthony DRAX, Petitioner-Appellee, v. Janet RENO, as Attorney General of the United States; Doris Meissner, as Commissioner of the Immigration and Naturalization Service; Edward McElroy, District Director, Immigration and Naturalization Service, New York District; Immigration and Naturalization Service, Respondents-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

338 F.3d 98

David Anthony DRAX, Petitioner-Appellee, v. Janet RENO, as Attorney General of the United States; Doris Meissner, as Commissioner of the Immigration and Naturalization Service; Edward McElroy, District Director, Immigration and Naturalization Service, New York District; Immigration and Naturalization Service, Respondents-Appellants.

Docket No. 02-2047.

United States Court of Appeals, Second Circuit.

Argued: September 18, 2002.

Decided: August 4, 2003.

SCOTT DUNN, Assistant United States Attorney (Varuni Nelson, Assistant United States Attorney, of counsel, Alan Vinegrad, United States Attorney, on the brief), Office of the United States Attorney for the Eastern District of New York, Brooklyn, NY; Alison Drucker, Office of Immigration Litigation, Washington, D.C., for Respondents-Appellants.

BRYAN LONEGAN (Janet Sabel, Scott Rosenberg, Helaine Barnett, of counsel), The Legal Aid Society, Brooklyn, NY, for Petitioner-Appellee.

Before: MCLAUGHLIN and CABRANES, Circuit Judges, and LYNCH, District Judge.^*

JOSÉ A. CABRANES, Circuit Judge.

This case vividly illustrates the labyrinthine character of modern immigration law—a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike. The inscrutability of the current immigration law system, and the interplay of the numerous amendments and alterations to that system by Congress during the pendency of this case, have spawned years of litigation, generated two separate opinions by the District Court and consumed significant resources of this Court. With regret and astonishment, we determine, as explained more fully below, that this case still cannot be decided definitively but must be remanded to the District Court, and then to the Board of Immigration Appeals ("BIA"), for further proceedings.

The Government appeals from a judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) granting a writ of habeas corpus to petitioner, David Anthony Drax, who was ordered deported by an Immigration Judge on the basis of a drug conviction and a conviction for attempted weapons possession. We disagree with the reasoning of the District Court and grant the writ on alternative grounds. However, we take this opportunity to commend the District Court's heroic efforts. We are mindful that district courts are severely constrained in the time and resources they can allocate to any one case and that it is frequently the case that only a Court of Appeals, at its relative leisure, can devote the excessive time required to penetrate in part this dark thicket of the law.

The principal questions presented on appeal are: (i) whether the Immigration and Nationality Technical Corrections Act of 1994 ("INTCA") § 203(c), Pub.L. No. 103-416, 108 Stat. 4305, 4311 (Oct. 25, 1994), codified at 8 U.S.C. §§ 1182, 1251 (1994), operates retroactively to foreclose discretionary relief from deportation under Immigration and Nationality Act ("INA") § 212(c), 8 U.S.C. § 1182(c) (1994), to aliens who, like the petitioner, pleaded guilty to attempted weapons offenses prior to the passage of the INTCA; and (ii) whether the Immigration Judge at the petitioner's immigration hearing erred by informing the petitioner that no relief was available, precluding him from applying for a combination of relief from deportation and adjustment of status known as "Gabryelsky relief."

On the first issue, the District Court held that INA § 212(c) relief from deportation remains available to the petitioner because the INTCA does not operate retroactively to render attempted weapons convictions deportable offenses for which no § 212(c) relief is available. We hold that the District Court's grant of a writ of habeas corpus on this ground was error because § 203(c) of the INTCA does operate retroactively to make attempted weapons convictions deportable offenses and to foreclose § 212(c) relief from deportation for petitioners like Drax who pleaded guilty to such offenses prior to the passage of the INTCA.

On the second issue, the District Court held that because the petitioner's chance of success under the Gabryelsky process was too attenuated, the Immigration Judge did not err in failing to recognize that Gabryelsky relief was possible. We hold that the petitioner had a reasonable likelihood of success under the Gabryelsky process and that, in the circumstances here presented, the Immigration Judge erred by failing to recognize the availability of such relief.

Accordingly, we affirm on alternative grounds the judgment of the District Court granting the writ of habeas corpus. We remand to the District Court with instructions to remand the cause to the BIA to allow the petitioner to pursue Gabryelsky relief.

BACKGROUND

The facts relevant to this appeal are set forth below, as well as in the District Court's opinion in 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 Convictions

Drax, a citizen of Trinidad and Tobago, entered the United States twenty-seven years ago, at age fifteen. He obtained lawful permanent resident status in 1984 at age twenty-three. He was married to a lawful permanent resident from 1981 until her death in 1994, and he married a United States citizen in April 2000. His father and siblings are naturalized United States citizens.

Drax pleaded guilty in New York State Supreme Court, Kings County, on May 26, 1993, to attempted criminal possession of a firearm in the second degree, a class C felony. He also pleaded guilty in that Court on April 12, 1996, to sale of a controlled substance in the fifth degree, a class D felony. Drax was sentenced simultaneously in April 1996 to concurrent terms of incarceration of one-to-three years for the weapons charge and two-to-four years for the drug charge.

II. Statutory Overview

At the time of Drax's drug and attempted weapons convictions, he was eligible for discretionary relief from deportation for his drug offense pursuant to INA § 212(c) ("§ 212(c)").² No such relief was required for his attempted weapons conviction because that offense was not a deportable crime under INA § 241(a), 8 U.S.C. § 1251(a)(2)(C) (1988). See Discussion, section II.A, post.

In 1994, however, Congress enacted the INTCA, which made numerous changes to the INA including, in INTCA § 203, changes that made attempted weapons possession a deportable crime for which no § 212(c) relief is available. INTCA § 203, 108 Stat. at 4311; see Discussion, section II.B, post. Accordingly, assuming that the INTCA applies retroactively—a conclusion we reach below—Drax's attempted weapons conviction is a deportable offense for which § 212(c) relief from deportation is not available.

For his attempted weapons conviction, Drax may nonetheless apply for a form of relief called "adjustment of status," in which a deportable alien's status is adjusted, pursuant to INA § 245(a) ("§ 245(a)"), 8 U.S.C. § 1255(a), to the status of admissible alien seeking to enter the country.³ See United States v. Gonzalez-Roque, 301 F.3d 39, 42 n. 1 (2d Cir.2002) (describing "adjustment of status"); Matter of Rainford, 20 I. & N. Dec. 598, 601 (B.I.A. 1992) (same).

Adjustment of status, however, is not available for Drax's drug conviction. See Jenkins v. INS, 32 F.3d 11, 15 (2d Cir. 1994) (holding that an alien with a drug conviction is "barred from adjusting his status to that of a lawful permanent resident under § 245(a) ... because his drug conviction renders him inadmissible to the United States pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II)"), overruled on other grounds, Aguirre v. INS, 79 F.3d 315 (2d Cir.1996).

In INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Supreme Court, affirming this Court's decision in the same case, 229 F.3d 406 (2d Cir.2000), held that certain 1996 changes to the immigration laws that would significantly alter the above analysis do not apply retroactively to petitioners such as Drax who pleaded guilty prior to the effective date of the changes. See St. Cyr, 533 U.S. at 326, 121 S.Ct. 2271 (affirming St. Cyr, 229 F.3d at 421). In particular, the Supreme Court held that Congress's April 24, 1996 enactment of § 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, 1277 (Apr. 24, 1996), which severely curtailed the availability of § 212(c) relief, and its subsequent enactment of § 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, Div. C, Title III, 110 Stat. 3009-546, 3009-597 (Sept. 30, 1996), which eliminated § 212(c) relief altogether, do not operate retroactively to bar § 212(c) relief to petitioners such as Drax. St. Cyr, 533 U.S. at 297-98, 121 S.Ct. 2271.

III. Proceedings Before the Immigration Judge and the BIA

In January 1997, the Immigration and Naturalization Service ("INS")⁴ commenced deportation proceedings against Drax by Order to Show Cause. In July 1997, Drax appeared pro se before an Immigration Judge, admitted his two convictions, and was found deportable. Drax I, at 4. At this appearance, Drax asked the Immigration Judge if he was "qualified for any type of a waiver" of deportation. Id.

The Immigration Judge, ruling several years prior to our decision or the Supreme Court's decision in St. Cyr, erroneously informed Drax that no relief from deportation was available to him under § 212(c) for his drug conviction because the restrictions in AEDPA § 440(d) applied retroactively to bar any such relief.⁵ He further informed Drax that he was ineligible for an adjustment of status under § 245(a) because adjustment of status — a form of relief from deportation available to aliens with weapons convictions — is not available to aliens with drug convictions. Ruling that...