Hernandez v. Gonzales

• Decision Date: 14 February 2006
• Docket Number: No. 04-3832.,04-3832.
• Citation: 437 F.3d 341
• Parties: Domingo Antonio HERNANDEZ, Petitioner v. <SMALL><SUP>*</SUP></SMALL>Alberto R. GONZALES, Attorney General of The United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

437 F.3d 341

Domingo Antonio HERNANDEZ, Petitioner v. ^*Alberto R. GONZALES, Attorney General of The United States, Respondent.

No. 04-3832.

United States Court of Appeals, Third Circuit.

Argued November 16, 2005.

February 14, 2006.

COPYRIGHT MATERIAL OMITTED

Joseph C. Hohenstein, (Argued), Orlow & Orlow, PC, Philadelphia, PA, for Petitioner.

Christopher J. Christie, United States Attorney, Louis J. Bizzarri, Assistant U.S. Attorney, Matthew J. Skahill, (Argued), U.S. Attorney's Office, Camden, NJ, for Respondent.

Before BARRY and AMBRO, Circuit Judges, and POLLAK,¹ District Judge.

AMBRO, Circuit Judge.

Domingo Antonio Hernandez petitions us to rule, inter alia, that the repeal of suspension of deportation under the former Immigration and Nationality Act (INA) § 244(a) has an impermissible retroactive effect on aliens like him who pled guilty to a deportable offense and who would have been eligible for suspension of deportation relief but for the repeal. For the reasons provided below, we disagree.

I. Facts and Procedural Background

Hernandez, a native and citizen of the Dominican Republic, entered the United States as a B-2 "visitor for pleasure" on September 9, 1974, and was authorized to stay in this country only until October 10, 1974. Hernandez, however, remained in the United States beyond that date without authorization from the Immigration and Naturalization Service (INS).²

On June 27, 1984, Hernandez pled guilty in New York state court to entering a plea of guilty to attempted criminal possession of a controlled substance (cocaine) in the third degree in violation of New York Penal Law § 220.16. As a result, he was sentenced to five years probation.

On March 12, 1997, Hernandez married a United States citizen who filed a visa petition on his behalf, which was approved on August 14, 1997. In 1998, Hernandez filed an application for adjustment of status (Form I-485) based on his marriage. In his I-485 application, Hernandez did not disclose his prior New York conviction. Hernandez's adjustment of status application was denied and a Notice to Appear was issued on June 21, 1999, starting his removal proceedings. The Notice to Appear charged Hernandez as being removable from the United States pursuant to § 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B), as an alien who after admission as a non-immigrant under INA § 101(a)(15) has remained in the United States longer than permitted by overstaying his temporary visa.

Hernandez appeared before an Immigration Judge (IJ) on December 13, 1999. At the hearing, he sought to pursue his application for adjustment of status based on his marriage pursuant to INA § 245 and, alternatively, sought discretionary relief (voiding his removal) pursuant to INA § 240A. The IJ ruled that Hernandez was ineligible for relief on both grounds because of his 1984 New York conviction.

Hernandez appealed the IJ's decision to the Board of Immigration Appeals (BIA). It remanded the matter to the IJ to clarify Hernandez's identity and to ascertain specifically whether the New York conviction actually pertained to him. Moreover, the BIA pointed out that the Government had failed to charge Hernandez with the prior conviction as a basis of removal.

On September 27, 2000, the IJ ruled that the 1984 New York conviction was for Hernandez. The next day the Government issued Additional Charges of Inadmissibility/Deportability pursuant to INA § 237(a)(2)(B)(i), charging Hernandez with being removable as an alien who has been convicted of a law or regulation of a State, the United States, or a foreign country relating to a controlled substance.

On August 13, 2002, a hearing was held and, on the basis of the 1984 criminal conviction, the IJ determined that Hernandez was ineligible for the relief he sought. Hernandez again appealed to the BIA. Excepting the IJ's ruling that Hernandez had been convicted of an "aggravated felony," the BIA affirmed the IJ's decision.

Hernandez, who was not in INS custody, sought a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3) in the United States District Court for the District of New Jersey. The District Court entertained Hernandez's § 2241 petition but denied him relief on the basis that he failed to satisfy the criteria for entitlement of the relief he sought. He know seeks our review.

II. Jurisdiction

Under the new judicial review regime imposed by the Real ID Act, Pub.L. No. 109-13, div. B, 119 Stat. 231 (2005), a petition for review is now the sole and exclusive means of judicial review for all orders of removal except those issued pursuant to 8 U.S.C. § 1225(b)(1). See 8 U.S.C. § 1252(a)(5). Our jurisdiction was also enlarged, as we now have the authority to consider constitutional claims or questions of law raised in a criminal alien's petition for review. 8 U.S.C. § 1252(a)(2)(D). Moreover, all habeas corpus petitions brought by aliens that were pending in the district courts on the date the Real ID Act became effective (May 11, 2005) were converted to petitions for review and transferred to the appropriate courts of appeals. See Real ID Act, Pub.L. No. 109-13, div. B, tit. I, § 106(c). We have held that habeas petitions that were pending before our Court on the effective date of the Real ID Act—such as the one in this case—were properly converted to petitions for review and retained by us. Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.2005). Indeed, we are obliged to vacate the District Court's opinion and address the claims raised in Hernandez's habeas petition as if they were presented before us in the first instance as a petition for review. Kamara v. Attorney General of U.S., 420 F.3d 202, 210 (3d Cir.2005).³

III. Merits

Hernandez seeks a ruling on the merits of his application seeking to avoid removal from the United States. In support of his request for relief, he presents two arguments. First, he maintains that he has a due process right to a hearing on the merits of his discretionary relief application. Second, he submits that, because he filed an application for discretionary relief, the INS is statutorily bound to consider it pursuant to former section 244(a) of the INA.

On April 1, 1997, "suspension of deportation" relief, INA § 244(a), 8 U.S.C. § 1254(a), was repealed and replaced by "cancellation of removal" relief, INA § 240A, 8 U.S.C. § 1229b(b), when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No. 104-208, div. C., 110 Stat. 3009 (1996) (IIRIRA). Under the former relief, a non-permanent resident alien against whom deportation proceedings on most criminal grounds had begun could apply for suspension of deportation, provided he had been physically present continuously in the United States for ten years immediately following the criminal act constituting the grounds for deportation, had good moral character, and could show that deportation would work a severe hardship on him or on certain United States citizen relatives. See INA § 244(a), 8 U.S.C. § 1254(a) (repealed 1996). By contrast, "cancellation of removal" provides for relief from removal where an non-permanent resident alien (1) has been present in the United States continuously for ten years, (2) has had "good moral character" during that period, (3) has no convictions for disqualifying crimes,⁴ and (4) has a spouse, parent, or child who is a U.S. citizen or lawful alien and for whom the applicant's removal would lead to "exceptional and extremely unusual hardship." INA § 240A, 8 U.S.C. § 1229b(b)(1).

A. Due Process

As noted, Hernandez argues that due process demands he be permitted to apply for discretionary relief seeking to avoid removal from the United States. The procedural component of the Fifth Amendment's Due Process Clause protects against the deprivation of life, liberty, or property without "due process of law." U.S. Const. amend. V. The necessary first step in evaluating any procedural due process claim is determining whether a constitutionally protected interest has been implicated.

Hernandez is correct in contending that aliens within the United States may not be deprived of liberty or property without due process. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953) ("It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law."). But, like others, aliens must in the first instance possess a liberty or property interest. See Bd. of Regents v. Roth, 408 U.S. 564, 569-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Aliens who seek only discretionary relief from deportation have no constitutional right to receive that relief. Cf. Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981).⁵ Rather, the ability of those aliens to remain in the United States is a matter of "permission and tolerance." Harisiades v. Shaughnessy, 342 U.S. 580, 586-87, 72 S.Ct. 512, 96 L.Ed. 586 (1952). It as an "act of grace" that, like a presidential pardon, is extended in the Attorney General's "unfettered discretion." INS v. Yang, 519 U.S. 26, 30, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996) (internal quotations omitted). In this context, Hernandez is not deprived of a liberty or property interest.⁶ See Tefel v. Reno, 180 F.3d 1286, 1301 (11th Cir.1999).⁷

B. Retroactivity

Hernandez alternatively argues on appeal that IIRIRA's repeal of suspension of deportation, former INA § 244(a), has an impermissible retroactive effect. Relying on INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004), Hernandez essentially maintains that the retroactivity analysis applicable to IIRIRA's repeal of the former INA § 212(c) is interchangeable with the analysis to be applied to...