Jankowski-Burczyk v. I.N.S.

• Decision Date: 29 May 2002
• Docket Number: Docket No. 01-2353.
• Citation: 291 F.3d 172
• Parties: Sylwia JANKOWSKI-BURCZYK, Petitioner-Appellee, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

291 F.3d 172

Sylwia JANKOWSKI-BURCZYK, Petitioner-Appellee, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant.

Docket No. 01-2353.

United States Court of Appeals, Second Circuit.

Argued: February 26, 2002.

Decided: May 29, 2002.

James K. Filan, Jr., Assistant United States Attorney for the District of Connecticut, New Haven, CT, (John A. Danaher III, United States Attorney, and Jeffrey A. Meyer, Assistant United States Attorney of Counsel, on the brief), for Appellant.

David Shahoulian, Law Student Intern, New Haven, CT, (Carroll L. Lucht, Jerome N. Frank Legal Services Org., and Alice Clapman, Law Student Intern, on the brief), for Appellee.

Before KEARSE, JACOBS, Circuit Judges, JONES, District Judge.^*

JACOBS, Circuit Judge.

Respondent-Appellant Immigration and Naturalization Service ("INS") appeals from an order entered by the United States District Court for the District of Connecticut (Hall, J.) granting Petitioner-Appellee Sylwia Jankowski-Burczyk's ("Jankowski") petition for a writ of habeas corpus. Jankowski's petition sought relief from a final order of removal from the United States. The district court concluded that Jankowski was denied equal protection by virtue of her status as a lawful permanent resident ("LPR"), which rendered her ineligible for a discretionary waiver based on family hardship under amended § 212(h) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1182(h). Jankowski would have been eligible for such a discretionary wavier had she not been an LPR, i.e., had she been a "non-LPR."

We reverse.

I

Jankowski is a native and citizen of Poland who was admitted to the United States as a refugee in 1983, at the age of seven. In 1985, Jankowski's status was adjusted to that of a lawful permanent resident, retroactive to the date of her original entry. Jankowski has a six-year-old son who is a citizen of the United States. Jankowski's father is also a U.S. citizen and her mother is an LPR.

On January 28, 1999, Jankowski entered a plea of guilty to federal bank larceny, in violation of 18 U.S.C. § 2113(b). She was sentenced principally to a term of twenty-one months' imprisonment and ordered to pay $84,634 in restitution.

On March 21, 2000, the INS issued a Notice to Appear charging Jankowski as removable from the United States, under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), on the ground that she had been convicted of an aggravated felony. On May 3, 2000, an immigration judge found Jankowski removable as charged and ineligible for any discretionary relief. The immigration judge determined that he lacked authority to rule on Jankowski's constitutional arguments but acknowledged that these arguments were preserved for appeal. The Board of Immigration Appeals ("BIA") affirmed on November 16, 2000, and likewise concluded that it lacked competence to rule on the constitutionality of the statutes it administers.

On December 18, 2000, Jankowski filed a pro se motion for a writ of habeas corpus, seeking relief (in pertinent part) on equal protection grounds. The district court granted the petition, concluding that:

The court cannot imagine a rational basis that Congress could have had for choosing to disadvantage LPR aggravated felons, as against non-LPR aggravated felons, when both have been convicted of the same crime, with regard to eligibility for discretionary extreme family hardship waivers under 8 U.S.C. § 1182(h). The court is compelled to agree with the Song court that "[t]his distinction simply defies logic, and as such, violates the equal protection clause of the Constitution," as applied to the petitioner under the Fifth Amendment Due Process Clause.

Jankowski v. INS, 138 F.Supp.2d 269, 285 (D.Conn.2001) (quoting Song v. INS, 82 F.Supp.2d 1121, 1134 (C.D.Cal.2000)). The district court remanded the matter to the BIA for further proceedings to allow Jankowski to pursue her claim for a § 212(h) discretionary waiver on the basis of extreme family hardship.

II

This appeal concerns the constitutionality of the waiver provision found in § 212(h) of the INA, 8 U.S.C. 1182(h), which authorizes the Attorney General to waive certain criminal grounds of inadmissibility, including the crime of which Jankowski was convicted.¹ (By its terms, § 212(h) provides for a waiver of inadmissibity only; but by a quirk elsewhere in the INA, § 212(h) in effect allows for a waiver of deportability as well.²) Pursuant to § 212(h), the Attorney General has discretion to grant a waiver

in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien....

8 U.S.C. § 1182(h)(1)(B).

Prior to 1996, the Attorney General had discretion to grant a § 212(h) waiver to any alien other than one who had committed a short list of offenses:

No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.

8 U.S.C. § 1182(h).

In September 1996, Congress amended § 212(h) to preclude a waiver for a lawful permanent resident who, after lawful admittance, committed any of a (vastly extended) list of offenses:

No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if ... since the date of such admission the alien has been convicted of an aggravated felony....

Id., as amended by § 348(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 (1996). The BIA has interpreted this 1996 limitation as applying only to LPRs. See In re Michel, 21 I. & N. Dec. 1101, 1104, 1998 WL 40407 (BIA 1998).

The upshot of the 1996 amendment, as interpreted by the BIA and as applied by the INS, is that an LPR is categorically ineligible for a form of relief that a non-LPR would be eligible to seek, even if the two aliens committed the same aggravated felony and even if the citizenship or immigration status of their family members was identical. Jankowski alleges that this effect of the 1996 amendment amounts to disparate treatment of persons who are similarly situated and therefore violates the equal protection component of the Due Process Clause of the Fifth Amendment.

III

The Due Process Clause of the Fifth Amendment guarantees every person the equal protection of the laws, "which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citing Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)). "Of course, the government can treat persons differently if they are not `similarly situated.'" Able v. United States, 155 F.3d 628, 631 (2d Cir. 1998).

The premise of the district court opinion is that the disparity between the treatment of "similarly situated non-LPRs and LPRs" is irrational. Jankowski, 138 F.Supp.2d at 277, 279. The prior question is whether LPRs and non-LPRs are similarly situated to begin with.

There is no dispute that LPRs and non-LPRs are distinct classifications that support disparate treatment under the INA, and that the INA treats them differently in a host of ways, of which § 212(h) is just one and far from the most important. See, e.g., 8 U.S.C. § 1101(a)(20) (LPR has right to reside permanently in the United States), § 1154(a)(1)(B)(i) (LPR has right to sponsor family members for admission to the United States), § 1228(b) (non-LPR aggravated felon subject to special expedited removal proceeding), § 1229b (different cancellation of removal procedures for LPRs and non-LPRs), § 1427 (LPRs eligible to apply for naturalization), §§ 1611-1641 (vast majority of non-LPRs ineligible for any federal public benefit, including retirement, welfare, disability, food stamps, and unemployment assistance). Thus, Congress classifies aliens as either LPRs or non-LPRs; that classification is obviously sensible and useful; and numerous provisions of this highly ramified statute implement the distinction. LPRs and non-LPRs (classifications defined by their mutual exclusion) are therefore not "similarly situated" as to the INA. Congress may enact a regulatory measure as to one classification without a counterpart measure as to the other, and without a rationale for the resulting lack of symmetry.

In other words, once Congress has created classifications within a ramified statutory scheme, it need not justify every difference in treatment between the two classes. "A complex statute, especially one that has been frequently amended at different times, rarely functions with all parts in perfect harmony. Even when a statute is the product of a single enactment, its provisions may embody compromises of various political and fiscal objectives.... It would ask practically the impossible to require of subsequently elected legislatures that their statutory amendments harmonize perfectly with the original objectives of all surviving portions of the statutes. If this were the test, few complex statutes would survive." Brown v. Bowen, 905 F.2d 632, 637 (2d Cir.1990). The INA imposes different regimes for LPRs and non-LPRs; Congress is therefore free to tweak what it considers a problem in one regime without worrying about the other.

The district court ruled that LPRs and non-LPRs are similarly situated because

the only distinction between the petitioner and such a non-LPR is the petitioner's LPR status upon which the...