Dunbar v. I.N.S., 3:99CV260(AHN).

• Decision Date: 23 August 1999
• Docket Number: No. 3:99CV260(AHN).,No. 3:99CV772(AHN).,No. 3:99CV773(AHN).,3:99CV260(AHN).,3:99CV772(AHN).,3:99CV773(AHN).
• Citation: 64 F.Supp.2d 47
• Parties: Rohan P. DUNBAR v. INS. Gyno Domond v. INS. Enrico St. CYR v. INS.
• Court: U.S. District Court — District of Connecticut

64 F.Supp.2d 47

Rohan P. DUNBAR v. INS.

Gyno Domond v. INS.

Enrico St. CYR v. INS.

No. 3:99CV260(AHN).

No. 3:99CV772(AHN).

No. 3:99CV773(AHN).

United States District Court, D. Connecticut.

August 23, 1999.

Michael G. Moore, Springfield, MA, for plaintiff.

James K. Filan Jr., Asst U.S. Attorney, District of Connecticut, New Haven, CT, for defendant.

RULING ON PETITIONS FOR HABEAS CORPUS

NEVAS, District Judge.

The petitioners in these cases, Rohan P. Dunbar ("Dunbar"), Gyno Domond ("Domond"), and Enrico St. Cyr ("St.Cyr"), are Lawful Permanent Residents ("LPRs") of the United States currently facing deportation as a consequence of criminal acts they have committed. The Immigration and Naturalization Service ("INS") has agreed, through an oral stipulation entered into via the United States Attorney's Office for the District of Connecticut, to suspend the deportation of the petitioners pending the outcome of these actions.

In particular, the petitioners seek writs of habeas corpus compelling the INS to allow them to apply for a statutorily repealed form of discretionary relief from deportation. For the following reasons, Dunbar's petition [doc. # 1 (3:99cv260(AHN))] is GRANTED, Domond's petition [doc. # 1 (3:99cv772(AHN))] is GRANTED, and St. Cyr's petition [doc. # 1 (3:99cv773(AHN))] is GRANTED.

BACKGROUND

On April 24, 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA") (effective date April 24, 1996). Later that year, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C, 110 Stat. 3009 (1996) ("IIRIRA") (transitional rules effective date October 30, 1996 and permanent rules effective date April 1, 1997). As discussed below, these acts established significant changes in the Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537 ("INA"), that affect, inter alia, (1) the jurisdiction of federal courts to review immigration decisions and (2) the relief available to aliens involved in deportation proceedings. The effects of these acts underlie the current petitions.

I. Dunbar

Dunbar was admitted to the United States as an LPR on March 27, 1984. Subsequently, he was convicted of assault in the second degree on January 2, 1996. As a consequence, on March 22, 1996, INS issued an Order to Show Cause which was served on Dunbar on April 18, 1996, but not filed with the Office of the Immigration Judge until May 1, 1996. An Immigration Judge ("IJ") held hearings on November 19, 1996, May 20, 1997, September 23, 1997, and January 12, 1998, and determined that Dunbar was subject to deportation as an alien who had committed an aggravated felony. Dunbar appealed to the Board of Immigration Appeals ("BIA") which dismissed his appeal on January 20, 1999. He filed the current petition for a writ of habeas corpus on February 11, 1999.

II. Domond

Domond entered the United States at an unknown time in the past. He obtained LPR status on August 12, 1993. Subsequently, on November 8, 1996, he was convicted of robbery. The robbery itself had occurred on November 18, 1994. As a result of his conviction, INS issued an Order to Show Cause on December 30, 1996, which was served on Domond on February 24, 1997, and filed with the Office of the Immigration Judge on February 27, 1997. On March 8, 1998, an IJ determined that Domond was subject to deportation as an alien who had been convicted of an aggravated felony. Domond appealed to the BIA which dismissed his appeal on December 22, 1998. He then filed the current petition for a writ of habeas corpus on April 27, 1999.

III. St. Cyr

St. Cyr was admitted to the United States as a LPR on June 17, 1986. He was convicted of sale of a narcotic/hallucinogen on March 8, 1996. As a consequence, INS issued a Notice to Appear in removal proceedings on April 10, 1997, which was served on St. Cyr on July 10, 1997 and filed with the Immigration Judge on July 23, 1997. On January 12, 1998, an IJ determined that St. Cyr was subject to deportation as an alien convicted of sale of a narcotic/hallucinogen. St. Cyr appealed to the BIA which dismissed his appeal on November 10, 1998. He filed the current petition for a writ of habeas corpus on April 27, 1999.

DISCUSSION

The INA provides that any alien who has been convicted of one of several various offenses, such as an aggravated felony or a controlled substance violation, is subject to deportation. See 8 U.S.C.A. § 1227(a)(2)(A)-(E) (West 1999). Prior to the 1996 amendments to the INA, an alien who faced deportation due to a criminal conviction could request discretionary relief from deportation pursuant to INA § 212(c). See 8 U.S.C.A. § 1182(c) (West 1995) (repealed). If that request was denied, an alien could seek review in the Courts of Appeals, see 8 U.S.C.A. § 1105(a) (West 1995) (repealed), or could petition for a writ of habeas corpus pursuant to either the INA, see 8 U.S.C.A. § 1105a(a)(10) (West 1995) (repealed), or the general habeas statute, see 28 U.S.C. § 2241 (1999).

On April 24, 1996, Congress enacted AEDPA. AEDPA § 440(d) barred INA § 212(c) relief for persons subject to deportation due to having committed any of certain enumerated criminal offenses, including aggravated felonies, and crimes involving "moral turpitude" or controlled substances. See AEDPA § 440(d). Later, in September 1996, Congress passed IIRIRA which repealed INA § 212(c) relief entirely and replaced it with a new type of relief designated "cancellation of removal." See IIRIRA § 304(b); see also 8 U.S.C. § 1229(b).¹ Cancellation of removal relief cannot be given to any alien that has been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3). Included in the definition of an aggravated felony is "illicit trafficking in a controlled substance." 8 U.S.C.A. § 1101(a)(43)(B).

In addition, IIRIRA supplanted the INA's judicial review provisions. See IIRIRA § 309(c)(1); see also 8 U.S.C. § 1252. In particular, the amended § 1252 generally limits the availability of judicial review of deportation orders to the Courts of Appeals. See 8 U.S.C. § 1252(a)-(b). As relevant to the arguments presented in this case, § 1252(g) provides that:

Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this act.

8 U.S.C.A. § 1252(g).

Here, the government asserts that the 1996 amendments to the INA deprive this Court of jurisdiction over St. Cyr's claim and preclude Dunbar and Domond from requesting INA § 212(c) relief.

I. Jurisdiction

The government contends that this Court lacks jurisdiction over St. Cyr's action because his proceedings before an IJ began after IIRIRA amended § 1252 to place severe limitations on judicial review of removal orders. In support of this claim, the government relies on Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 941-42 & 942 n. 7, 142 L.Ed.2d 940 (1999) ("AAADC"), and Fontes v. Reno, No. 99cv10491-REK, slip op. at 8-9, (D.Mass. Mar. 9, 1999).

In AAADC, the Supreme Court held that § 1252(g) deprived federal courts of jurisdiction over an action that alleged that the INS had targeted certain individuals for deportation because of their affiliation with a politically unpopular group. See 119 S.Ct. at 943. The Court ruled that § 1252(g) narrowly applies to preclude judicial review of the Attorney General's "decision or action" to "commence proceedings, adjudicate cases, or execute removal orders." See id. The Court noted that many other actions exist that are part of the deportation process that are not covered by § 1252(g), and that § 1252(g) should not be read as an all-encompassing provision. See id. Indeed, the Court recognized that the reason this provision focuses on these discrete acts of the Attorney General is that they all represent points in a deportation proceeding at which the Attorney General could decide for humanitarian reasons to "defer action," i.e., to abandon deportation proceedings against an individual who is subject to deportation. See id. at 943-44. This provision, then, is designed merely to shelter the Attorney General's decision to continue or discontinue a deportation proceeding, see id. at 944, and has no direct relevance to questions regarding a federal court's habeas jurisdiction. Indeed, in regard to the continuing validity of habeas jurisdiction, while the Supreme Court in AAADC expressly noted that "disagreement" exists between the Courts of Appeals concerning that issue, see id. at 942 n. 7, it never purported to resolve that disagreement.

In pre-AAADC rulings, both the Second Circuit and other Courts of Appeals have held that federal courts continue even after the 1996 amendments to the INA to have jurisdiction over petitions for habeas corpus pursuant to 28 U.S.C. § 2241. See Henderson v. INS, 157 F.3d 106, 118-20 (2d Cir.1998), cert. denied sub nom. Navas v. Reno, ___ U.S. ___, 119 S.Ct. 1141 143 L.Ed.2d 209 (1999); Jean-Baptiste v. Reno, 144 F.3d 212, 219 (2d Cir.1998), reh'g en banc denied, 175 F.3d 226 (1999); see also Goncalves v. Reno, 144 F.3d 110, 123 (1st Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1140, 143 L.Ed.2d 208 (1999); Sandoval v. INS, 166 F.3d 225 (3rd Cir.1999).

In Jean-Baptiste, the Second Circuit held that "in the absence of language affirmatively and clearly eliminating habeas review, we presume Congress did not aim to bar federal courts' habeas jurisdiction pursuant to § 2241." 144 F.3d at 219. In particular, the court ruled that:

Nothing in the language of either the Antiterrorism Act or the Immigration Reform Act suggests that Congress expressly repealed § 2241, limited its scope, or eliminated the jurisdiction of the...