Heaven v. Gonzales, 05-61022.

• Decision Date: 14 December 2006
• Docket Number: No. 05-61022.,05-61022.
• Parties: Dervin Venion HEAVEN, also known as Sean Samuels, also known as Ervin Henven, also known as Derving Evan, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

473 F.3d 167

Dervin Venion HEAVEN, also known as Sean Samuels, also known as Ervin Henven, also known as Derving Evan, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 05-61022.

United States Court of Appeals, Fifth Circuit.

December 14, 2006.

COPYRIGHT MATERIAL OMITTED

Dervin Venion Heaven, Gadsden, AL, pro se.

Thomas Ward Hussey, Dir., Linda Susan Wendtland, John Clifford Cunningham, U.S. Dept. of Justice, OIL, Kristen Giuffreda Chapman, U.S. Dept. of Justice, Civ. Div. Imm. Lit., Washington, DC, Caryl G. Thompson, U.S. INS, Attn: Joe. A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before SMITH, BENAVIDES and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Before us is a petition for review of a decision of the Board of Immigration Appeals ("BIA"), which affirmed the determination of an immigration judge that the petitioner was not eligible to apply for cancellation of removal on the basis of the stop-time rule. Because the BIA correctly decided that the stop-time rule may be applied retroactively to the petitioner's pre-1996 convictions and because we lack jurisdiction over the petitioner's remaining claims, we DENY the petition in part and DISMISS it in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Dervin Venion Heaven ("Heaven") was born in Jamaica in 1966 and admitted to the United States as an immigrant on March 14, 1986, but has never become a United States citizen. On February 11, 1998, Heaven pleaded guilty, pursuant to a plea agreement, to the criminal sale of marijuana in the fourth degree in violation of New York Penal Law § 221.40. Following his conviction, the Immigration and Naturalization Service ("INS")¹ took Heaven into custody and initiated proceedings to remove him from the United States. The INS filed a Notice to Appear in immigration court and served it on Heaven on December 4, 2000. In the Notice, the INS charged that Heaven was subject to removal under § 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(B)(I) (2000), which authorizes the deportation of any alien who has been convicted of a violation of "any law or regulation of a State ... relating to a controlled substance ...."²

Over the next several years, the immigration judge twice found Heaven subject to removal and ineligible for cancellation of removal, only to have the case reversed and remanded by the BIA for reasons not relevant to the instant petition. On March 24, 2003, Heaven submitted an application for cancellation of removal pursuant to INA § 240A, 8 U.S.C. § 1229b, which permits the Attorney General to cancel the removal of a deportable alien in certain circumstances. The DHS (formerly INS) then asserted that between August 28, 1991, and September 13, 1992, Heaven had been convicted of misdemeanor drug offenses in New York on five occasions— four for criminal possession of marijuana and once for criminal sale of marijuana. Heaven denied these allegations, and the DHS withdrew its claim regarding one of the convictions.

On September 3, 2003, the immigration judge found that the DHS proved that Heaven was convicted of possession of marijuana on November 16, 1991, August 3, 1992, and September 13, 1992, and the criminal sale of marijuana on March 8, 1992. The immigration judge then determined that Heaven was ineligible for cancellation of removal because, under the stop-time rule, Heaven's 1991 and 1992 convictions prevented him from having the seven years of continuous residence in the United States necessary for cancellation of removal. See 8 U.S.C. § 1229b(a)(2) (requiring seven years of continuous residence in the United States to be eligible for cancellation of removal); id. § 1229b(d)(1) (stating that period of continuous residence ends when the alien commits certain deportable offenses).

Heaven appealed to the BIA, contending that application of the stop-time rule was impermissibly retroactive, as the rule was not enacted until 1996, after Heaven had received his convictions. On January 21, 2004, the BIA dismissed Heaven's appeal, holding that the stop-time rule should be applied retroactively to Heaven's pre-1996 convictions. Heaven then filed a petition for habeas corpus in the United States District Court for the Eastern District of New York on April 7, 2004, seeking review of the BIA's order. On October 28, 2005, the district court transferred the habeas petition to this court pursuant to the REAL ID Act of 2005 ("REAL ID Act"), Pub.L. No. 109-13, 119 Stat. 231, 310-11, § 106(c) (2005).³ See also 8 U.S.C. § 1252(a)(5) (making a petition for review in the court of appeals the sole and exclusive means for review of an order of removal). The parties have briefed the issues and we now turn to the merits of our decision.

II. JURISDICTION AND STANDARD OF REVIEW

Section 106(c) of the REAL ID Act authorizes us to treat Heaven's petition for habeas corpus as a petition for review, and this court has jurisdiction to review constitutional claims and questions of law raised in a petition for review. See 8 U.S.C. § 1252(a)(2)(D). We give deference to the BIA's interpretation of the INA under the principles of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See also James v. Gonzales, 464 F.3d 505, 508 (5th Cir.2006) ("We accord substantial deference to the BIA's interpretation of the INA itself and definitions and phrases within it ...." (internal quotation marks and citation omitted)). However, we review de novo claims of constitutional error, such as due process violations, in immigration proceedings. Ali v. Gonzales, 440 F.3d 678, 681 (5th Cir.2006) (per curiam); Anwar v. INS, 116 F.3d 140, 144 (5th Cir.1997).

III. DISCUSSION

Heaven raises three issues on appeal: (1) whether the stop-time rule should have been applied retroactively to his 1991 and 1992 convictions; (2) whether he should be permitted to simultaneously apply for § 212(c) relief; and (3) whether res judicata and collateral estoppel bar consideration of his 1991 and 1992 convictions. The Government contends that Congress intended the stop-time rule to be applied retroactively and that this court lacks subject matter jurisdiction over Heaven's other claims because he failed to exhaust his administrative remedies. We first consider the application of the stop-time rule to Heaven's case.

A. Retroactive Application of the Stop-Time Rule

On appeal, Heaven does not contend that he is not subject to removal on the basis of his February 11, 1998, conviction. Instead, Heaven argues that the immigration judge and the BIA erred in determining that he was ineligible for cancellation of removal on the basis of the stop-time rule.

The cancellation of removal procedure was created in 1996 when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996). As the procedure currently stands,

The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien—

(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,

(2) has resided in the United States continuously for 7 years after having been admitted in any status, and

(3) has not been convicted of any aggravated felony.

INA § 240A(a), 8 U.S.C. § 1229b(a). The IIRIRA further added a limitation on the continuous residence requirement in the second prong of the cancellation of removal criteria as follows:

For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end . . . (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.

INA § 240A(a), 8 U.S.C. § 1229b(d)(1). This is known as the stop-time rule.

In this case, the BIA found that the stop-time rule applied to Heaven's 1991 and 1992 convictions. Because Heaven entered the United States in 1986 and committed drug offenses in 1991 and 1992 that rendered him deportable under 8 U.S.C. § 1227(a)(2), his period of continuous residence in the United States ended after only five years pursuant to the stop-time rule. Therefore, the BIA reasoned that Heaven was ineligible for cancellation of removal because he did not have seven years of continuous residence.

Heaven, however, argues that his convictions for the drug offenses in 1991 and 1992 did not render him ineligible for cancellation of removal at that time because the stop-time rule was not enacted until 1996.⁴ Therefore, he contends that the BIA's application of the stop-time rule to his convictions is impermissibly retroactive and violates his due process rights under the United States Constitution.

1. Retroactive Application of Statutes

"[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence ...." Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Indeed, "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly ...." Id. However, retroactive legislation is not, per se, unenforceable. See INS v. St. Cyr, 533 U.S. 289, 316, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ("[I]t is beyond dispute that, within constitutional limits, Congress has the power to enact laws with retrospective effect.").

The Supreme Court has set out a two-part test to determine when it is permissible to apply a statute retroactively. Margolies v. Deason, 464 F.3d 547, 551 (5th Cir.2006) (citing Landgraf). The first step is to "ascertain whether Congress has...