Edwards v. I.N.S., Docket No. 03-2292.
| Decision Date | 17 December 2004 |
| Docket Number | Docket No. 03-2104.,Docket No. 03-2292. |
| Parties | Alexis Milton EDWARDS, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee. Eva Trinidad FALCONI Petitioner-Appellee, v. Immigration and Naturalization Service, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Marjorie M. Smith (Englander & Smith, of counsel), Tappan, NY, for Petitioner-Appellant Edwards, No. 03-2292.
Steven Kim, Assistant United States Attorney for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York (F. Franklin Amanat, Varuni Nelson, Assistant United States Attorneys, of counsel), Brooklyn, NY, for Respondent-Appellee, No. 03-2292.
Anjan Sahni, Wilmer, Cutler & Pickering (Paul A. Engelmayer, on the brief), New York, NY, for Petitioner-Appellee Falconi, No. 03-2104.
Steven Kim, Assistant United States Attorney for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York (Varuni Nelson, Kristen Chapman, Assistant United States Attorneys, of counsel), Brooklyn, NY, for Respondent-Appellee, No. 03-2104.
Before: CALABRESI and SOTOMAYOR, Circuit Judges, and HALL, District Judge.*
These cases, which we address together, raise the question of whether aliens who were erroneously denied the opportunity to apply for § 212(c) relief, should be barred from seeking such relief as a result of their subsequent accrual of five or more years of imprisonment on one or more aggravated felony offenses. We conclude that Petitioners' applications for § 212(c) relief should be judged by the Executive Office for Immigration Review ("EOIR")1 nunc pro tunc, that is, as if the Petitioners had not yet accrued five years' imprisonment. Because we hold that it would be appropriate to award Petitioners equitable relief, we do not decide the issue of whether § 212(c), as a matter of statutory interpretation, compels the same result.
Prior to the amendment of the immigration laws in 1996, section 212(c) of the Immigration and Nationality Act ("INA") afforded one of the most important forms of relief available to aliens facing deportation.2 As it existed over much of its history, § 212(c)3 relief was potentially available to most long-term legal residents of the United States, including many who were criminal aliens. See 8 U.S.C. § 1182(c) (1995) (repealed 1996). For a significant number of such aliens, a § 212(c) waiver constituted the only possible way of securing relief from deportation. United States v. Copeland, 376 F.3d 61, 73 (2d Cir.2004). In recognition of the importance of § 212(c) relief to aliens facing deportation, we have held that the erroneous denial of the opportunity to apply for § 212(c) relief may render deportation proceedings "fundamentally unfair." Id. at 75.
In 1990 and again, in 1996, Congress limited the availability of § 212(c) relief. In 1990, Congress restricted the category of aggravated felons eligible for § 212(c) relief to those who had not served five or more years in prison on their aggravated felony offense. See Immigration Act of 1990 ("IMMAct"), Pub.L. No. 101-649, § 511(a), 104 Stat. 4978, 5052 (1990). In 1996, in § 440(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Congress excluded aggravated felons altogether from the class of those eligible for § 212(c) relief. Pub.L. No. 104-132, § 440(d), 110 Stat. 1214 (1996). Shortly thereafter, in the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Congress replaced § 212(c) relief with a new form of discretionary relief known as "cancellation of removal,"4 for which aggravated felons are not eligible. Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-546 (1996) (codified at 8 U.S.C. 1229b).
The 1996 amendments to § 212(c) were subsequently deemed by the Attorney General to apply to all pending and future deportation proceedings. See Matter of Soriano, 21 I. & N. Dec. 516 (Op. Atty Gen. Feb. 21, 1997); see also Matter of Yeung, 21 I. & N. Dec. 610, 1996 WL 683917 (BIA 1996). Thus, during the years immediately following the passage of AEDPA and IIRIRA, aggravated felons facing deportation were routinely deemed ineligible for § 212(c) relief. Our Court reversed part of the Attorney General's approach in 1998, and held that § 440(d) was not intended to apply retroactively to immigration proceedings pending at the time of its enactment. Henderson v. INS, 157 F.3d 106, 130 (2d Cir.1998). In 2000, in St. Cyr v. INS, 229 F.3d 406 (2d Cir.2000) ("St. Cyr I"), our Court further limited the sweep of AEDPA and IIRIRA. We concluded that the Acts' restrictions on discretionary relief imposed retroactive consequences on those who had pled guilty prior to the laws' enactment. Id. at 418. A retroactive effect of this sort, we held, was only permitted under Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), if Congress clearly intended it. St. Cyr I, 229 F.3d at 413. Finding no such intent in the statutes, we ruled that the relevant aliens were potentially eligible for § 212(c) relief. Id. at 420. St. Cyr was subsequently affirmed by the Supreme Court. INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ("St. Cyr II").
Following the decisions in Henderson and St. Cyr I and II, many aliens who had been denied the opportunity to apply for § 212(c) relief under Soriano or Yeung petitioned the Board of Immigration Appeals ("the BIA" or "the Board") to reopen their immigration proceedings. In addition, the BIA itself, sua sponte, reopened the proceedings of some aliens, who now appeared to be eligible for § 212(c) relief. The Petitioners are among those who sought, or were sua sponte granted, reopening of their immigration proceedings after Henderson or St. Cyr.
Petitioner Anthony Milton Edwards ("Edwards") entered the United States as a lawful permanent resident in 1986. Prior to his incarceration on the charges forming the underlying basis for his deportation order, he was lawfully employed for many years, and served in the United States military. Petitioner Edwards has strong family ties in the United States, with both of his parents, as well as all of his siblings, residing here.
Edwards was arrested on August 4, 1992 on drug-related charges. On October 26, 1992, he pleaded guilty to, and was convicted of, attempted criminal sale of a controlled substance in the third degree. Shortly thereafter, on January 25, 1993, he was convicted, again upon a plea of guilty, of criminal sale of a controlled substance in the second degree. Edwards was committed to the custody of the New York Department of Correctional Services ("NYDOCS") on March 3, 1993, with 204 days of jail time credit. Edwards was subsequently paroled into the custody of the Immigration and Naturalization Service5 ("the Service" or "the INS") on August 11 1997. On July 27, 2000, Edwards was recommitted to the custody of the NYDOCS for violating the conditions of his parole. Edwards was re-paroled into the custody of the INS on October 18, 2000. He is currently detained by the Service in Leesport, Pennsylvania.
On June 22, 1995, while Edwards remained in state custody, the INS initiated deportation proceedings against him. Following a deportation hearing, an Immigration Judge ("IJ") found Edwards deportable, but granted him a § 212(c) waiver. The IJ noted that Edwards had strong family ties in the United States, had adduced significant evidence of rehabilitation, and had been legitimately employed prior to his incarceration. The IJ concluded that Edwards had demonstrated "outstanding equities" and found "specifically that it would be in the best interest of the United States to allow [Edwards]...to remain here...."
The INS appealed to the BIA, which on May 21, 1997, reversed. The BIA found that Edwards was ineligible for § 212(c) relief based on AEDPA § 440(d) and the Attorney General's opinion in Matter of Soriano, 21 I. & N. Dec. at 534. Petitioner Edwards's motion for reconsideration of the Board's decision was denied on July 30, 1997. At that time, Edwards had not yet served five years in prison on his aggravated felony offenses.
Three and half years later, the BIA reopened Petitioner Edwards's deportation proceedings sua sponte.6 Noting our Court's intervening decision in Henderson, the Board determined that it would be appropriate to remand Petitioner Edwards's proceedings for further consideration of his eligibility for § 212(c) relief. In so doing, the Board stated in part that:
barring any additional criminal activity on the part of the respondent, we would agree with the Immigration Judge's original decision to grant the respondent the requested relief. However, due to the length of time that has elapsed since the Immigration Judge's decision, based primarily on the great strides the respondent has made towards rehabilitation, we will remand the record for either party to present additional evidence regarding the exercise of discretion in this case.
Edwards, No. A40 231 511 — Napanoch at 2.
On remand, however, Edwards's proceedings focused exclusively on whether he met the statutory eligibility criteria for § 212(c) relief. In response to questions by the IJ, Edwards's lawyer conceded that Edwards had, by the time of the remanded proceedings, served more than five years in prison on one or more aggravated felony offenses.7 The IJ, as a result, concluded that Edwards was ineligible for § 212(c) relief. On appeal, the BIA affirmed, rejecting Edwards's request to "be returned to the position that he was in at the time th[e] Board rendered [its]...decision on May 21, 1997." Matter of Edwards, No. A40 231 511 — New York at 2 (BIA Nov. 30, 2001).
Petitioner Edwards subsequently filed a pro se habeas petition in the Eastern...
To continue reading
Request your trial
-
Spina v. Department of Homeland Sec.
...imposed upon conviction and, therefore, cannot count toward accrual of § 212(c)'s five-year bar; and (2) that, pursuant to Edwards v. INS, 393 F.3d 299 (2d Cir.2004), time he spent in post-conviction custody also cannot count toward accrual of the § 212(c) bar, at least for the period Spina......
-
Zhang v. Holder, Docket No. 09-2628-ag.
...pro tunc may, in an appropriate circumstance, be granted as a means of rectifying error in immigration proceedings.” Edwards v. INS, 393 F.3d 299, 309 (2d Cir.2004) (emphasis added, footnote omitted). However, the doctrine of nunc pro tunc “is a ‘far-reaching equitable remedy’ applied in ‘c......
-
In re Player's Poker Club, Inc.
...courts have relied on Mitchell to grant nunc pro tunc relief in a variety of other circumstances. See, e.g., Edwards v. I.N.S. , 393 F.3d 299, 310-12 (2d Cir. 2004) (nunc pro tunc relief appropriate to remedy erroneous denial of petition for relief from deportation by Bureau of Immigration ......
-
Zhong v. U.S. Dept. of Justice, 02-4882.
...with "removal" as the term of art to refer to the denial or revocation of admittance to this country. See Edwards v. INS, 393 F.3d 299, 302 n. 4 (2d Cir.2004) (discussing the change). Except when referring to specific statutory language, we will use the terms "deportation" and "removal" int......