Gomez v. Ashcroft

• Decision Date: 02 December 2003
• Docket Number: No. CIV.A.3:02-CV1002JCH.,CIV.A.3:02-CV1002JCH.
• Citation: 293 F.Supp.2d 162
• Court: U.S. District Court — District of Connecticut
• Parties: Juan Carlos GOMEZ, Petitioner, v. John ASHCROFT, Attorney General Respondent.

293 F.Supp.2d 162

Juan Carlos GOMEZ, Petitioner, v. John ASHCROFT, Attorney General Respondent.

No. CIV.A.3:02-CV1002JCH.

United States District Court, D. Connecticut.

December 2, 2003.

Michael G. Moore, Law Offices of Maria De Castro Foden, Hartford, CT, Roberto T. Lucheme, Glastonbury, CT, for Petitioner.

Lisa E. Perkins, U.S. Attorney's Office-HFD, Hartford, CT, for Respondent.

RULING DENYING PETITION FOR WRIT OF HABEAS CORPUS AND STAY OF REMOVAL [Dkt. No. 1]

HALL, District Judge.

Petitioner Juan Carlos Gomez requests that this court grant his petition for the writ of habeas corpus [Dkt. No. 1] brought pursuant to 28 U.S.C. 2241. Gomez argues that he has not committed an offense which renders him removable or, in the alternative, that he is eligible for discretionary relief. For the reasons stated below, the court rejects both of the petitioner's arguments and denies his petition for the writ of habeas corpus.

I. FACTS AND PROCEDURAL HISTORY

Petitioner Juan Carlos Gomez, a 35-year-old native citizen of Columbia, has been a lawful permanent resident of the United States for the past twenty-two years. Gomez first entered the United States as an immigrant on or about May 10, 1980, at the age of thirteen.

On September 10, 1996, Gomez pled guilty to and was convicted of third degree robbery in violation of Connecticut General Statutes § 53a-136 based on conduct that occurred in November 1994. He was sentenced to three years' imprisonment, execution suspended, and three years' probation to run concurrently with a prior sentence of probation for a narcotics possession violation.¹ On October 25, 1999, as a result of a probation violation, Gomez's probation on the drug charge was revoked and his sentence on the robbery conviction was modified so that he was ordered to serve three years of his five-year prison sentence.

In May 2000, the INS initiated removal proceedings against Gomez. Initially, as a pro se litigant, and then again later, when represented by counsel, Gomez conceded his removability. The immigration judge (IJ) found by "clear and convincing evidence" that Gomez was removable and ordered him to be removed. Specifically, the IJ concluded that Gomez's conviction for third degree robbery in violation of Conn. Gen.Stat. 53a-136 "clearly falls within the definition of a crime of violence as found in 18 United States Code Section 16" and that he had therefore committed "an aggravated felony." INS Resp.: IJ's Oral Decision, dated January 10, 2002, at 2 [Dkt. No. 6]. On appeal, the Board of Immigration Appeals (BIA) remanded to the IJ "in order that the respondent may be afforded an opportunity to apply for relief under section 212(c) ... and any other relief for which he may be eligible."² INS Resp.: BIA Order, dated February 28, 2001 [Dkt. No. 6].

On remand, the IJ concluded as a matter of law that Gomez did not "fall[] within the ambit of 212(c) eligibility under [the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)]" because he "pled guilty on September 11th, 1996," "after the enactment of ADEPA on April 24th, 1996." INS Resp.: IJ's Oral Decision, dated January 10, 2002, at 7 [Dkt. No. 6]. Nonetheless, the IJ concluded that if he were able to exercise his discretion and grant a 212(c) waiver of deportation, he "would grant the respondent a favorable exercise of discretion." Id. at 9. In closing, the IJ ordered Gomez's removal to Columbia. Gomez subsequently filed this petition for the writ of habeas corpus.

II. STANDARD OF REVIEW

Judicial review of final orders of removal against aliens who are removable based upon a conviction of an aggravated felony is generally prohibited. See 8 U.S.C. § 1252(a)(2)(C). However, federal courts retain residual jurisdiction to determine whether an alien has been convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), as defined by 18 U.S.C. § 16. See generally Chery v. Ashcroft, 347 F.3d 404, 406 (2d Cir.2003).

Because the BIA is charged with administering the Immigration and Nationality Act ("INA"), its interpretation of the INA's provisions must be granted deference. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, federal courts review its interpretation of federal or state criminal statutes de novo. See Dalton v. Ashcroft, 257 F.3d 200, 203 (2d Cir.2001); Michel v. INS, 206 F.3d 253, 263 (2d Cir.2000).

Thus, this court will review de novo the various questions presented in this case first, whether third-degree robbery under Connecticut law qualifies as a "crime of violence" under 18 U.S.C. § 16 and thus an "aggravated felony"; second, whether it is permissible to apply retroactively the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 100 Stat. 3009-546 et seq. (Sept. 30, 1996), to an alien whose criminal conduct pre-dates its enactment; and, third, whether section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), see AEDPA § 440(d); Pub.L. No. 104-132, 110 Stat. 1214 et seq., precludes eligibility for 212(c) relief of aliens who committed their qualifying crimes prior to its enactment on April 24, 1996 but who pled guilty after its enactment. The court answers all three questions in the affirmative and therefore denies Gomez's petition for the writ of habeas corpus.

III. DISCUSSION

A. A "Crime of Violence" and Therefore an "Aggravated Felony"?

The first issue presented in this case involves the relatively straightforward question of whether Gomez's state conviction for third-degree robbery in violation of Conn. Gen.Stat. § 53a-136 is a "crime of violence" as defined in the federal criminal code, 18 U.S.C. § 16.³ As such, this court reviews de novo whether a conviction under Conn. Gen.Stat. § 53a-136, as defined in § 53a-133, qualifies as a "crime of violence." See Dalton, 257 F.3d at 203. The court agrees with the IJ and concludes that it does.

Any alien who is convicted of an "aggravated felony" after admission to the United States may be deported. 8 U.S.C. § 1227(a)(2)(A)(iii). Twenty-one aggravated felonies are specified in various subsections of 8 U.S.C. § 1101(a)(43)(F). Subsection (F) thereof identifies one such "aggravated felony" as a "crime of violence" for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F). "Crime of violence" is, in turn, defined in Title 18 as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any ... offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16.

Gomez was convicted of third-degree robbery under Conn. Gen.Stat. § 53a-136, which references Conn. Gen.Stat. § 53a-133, which provides:

A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny. Conn. Gen.Stat. § 53a-133. Based on the plain language of the Connecticut statute, which implicates only acts which "threaten[] the immediate use of physical force," third-degree robbery clearly qualifies as a "crime of violence" as defined by federal statute. See generally Chery, at 406 (third degree intentional assault in, Connecticut does not qualify as a "crime of violence" for immigration purposes); Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir.2003)(Connecticut's statutory rape law meets "crime of violence" requirement because such crimes involve a "substantial risk" of physical force under the federal statute); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir.2001)(conviction for DWI under New York law does not constitute a "crime of violence").

In his memoranda to this court, Gomez offers various arguments that the statute's references to larceny, the definition of which does not necessarily entail the use of physical force, somehow negates the statute's clear requirement that offenders must "use[] or threaten[] the immediate use of physical force upon another person." Specifically, he argues that the last phrase of § 53a-133(2), "to engage in other conduct which aids in the commission of the larceny," suggests that the statute can encompass conduct which is not a "crime of violence." Gomez simply misreads the statute. The statute, which begins with the introductory language "uses or threatens the immediate use of physical force," has two subsidiary clauses, one of which is necessary to the commission of the crime. The determinative phrase-i.e. ". . . uses or threatens the immediate use of physical force . . ."-clearly applies to both subsections (1) and (2) of § 53a-133. Contrary to Gomez's contention, subsection (2) is not an alternative to the initial "uses or threatens the immediate use of physical force" phrase.

Further, subsection (2) of the statute reads: "A person commits robbery when ... he uses or threatens the immediate use of physical force ... for the purpose of ... (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny." Under subsection (2), it is the victim ("owner") or a third party ("another person")-not the criminal actor-who "engages in other conduct which aids in the commission of the larceny." It is therefore clear that violations of § 53a-136, under either subsection (1) or (2) of § 53a-133, qualify as "crime[s] of violence."

Gomez also argues that the...