Jankowski v. I.N.S., Civ.A.3:00-CV2402JCH.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Citation138 F.Supp.2d 269
Decision Date12 April 2001
Docket NumberNo. Civ.A.3:00-CV2402JCH.,No. Civ.A. 3:00-CV2466JCH.,Civ.A.3:00-CV2402JCH.,Civ.A. 3:00-CV2466JCH.

HALL, District Judge.

The petitioner, Sylwia Jankowski, is a lawful permanent resident alien ("LPR"), who is currently being detained at the York Correctional Institute in Niantic, Connecticut. After being convicted in the Eastern District of Missouri on January 28, 1999, of knowingly taking with the intent to steal more than $1,000, representing deposits that were federally insured, the Immigration and Naturalization Service ("INS") instituted removal proceedings against her on March 21, 2000 pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii). Immediately following a hearing on May 3, 2000, an Immigration Judge ("IJ") entered an order finding the petitioner removable to Poland. In the Order, the IJ noted that the petitioner had made no application for relief from removal. The petitioner appealed this order to the Board of Immigration Appeals ("BIA"), which dismissed the appeal on November 16, 2000.

The petitioner filed a Petition for Writ of Habeas Corpus and a Motion to Stay Deportation in this court on December 18, 2000.1 The court issued an Order to Show Cause on December 18, 2000, and following the court's appointment of counsel for the petitioner on March 8, 2001, the court heard oral argument on March 29, 2001.

The petitioner raises a challenge under the equal protection component of the Due Process Clause of the Fifth Amendment to the application of INA § 212(h), codified at 8 U.S.C. § 1182(h), the operation of which denies the petitioner the opportunity to apply for a discretionary waiver of removal due to her status as a LPR convicted of an aggravated felony. The petitioner also seeks an order staying removal of the petitioner pending the final resolution of the case. For the reasons below, the Petition [Dkt. No. 1] is GRANTED and the Motion for Stay of Deportation [Dkt. No. 3] and the Motion for Release on Petitioner's Own Recognizance [Dkt. No. 7] are DENIED as moot.2

A. Petitioner's background

The following facts are not in dispute. The petitioner is a 25-year-old native of Poland, who entered the United States on November 15, 1983, as a refugee. Her status was adjusted to that of a LPR on May 6, 1985, retroactive to the date of her original entry. The petitioner has a six-year-old son who is a citizen of the United States.

The petitioner has been convicted of an "aggravated felony" as that term is used in 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1182(h) and defined in INA § 101(a)(43)(G), codified at 8 U.S.C. § 1101(a)(43)(G).3 Upon the petitioner's release from incarceration, she was detained by the INS and subsequently ordered removed from the United States. She remains in custody in the District of Connecticut pending her removal. At oral argument, the government informed the court that the petitioner would not be removed before 5 p.m. on April 12, 2001.4

B. Statutory provisions at issue

The petitioner's equal protection challenge centers on INA § 212(h), codified at 8 U.S.C. § 1182(h). This section provides, in pertinent part, that the Attorney General may grant a discretionary waiver from removal if the removable alien "is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence" and "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). Additionally, the Attorney General must consent "to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status." Id. § 1182(h)(2). In September 1996, this section was amended by section 348(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat.2009-546, which added the following language:

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 either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.

Id. § 1182(h).

As amended, section 1182(h)(1)(B) would provide a potential discretionary waiver for extreme family hardship for any LPR who is otherwise eligible, i.e., "is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence," who has not been convicted of an aggravated felony, and who has lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of removal proceedings against her. See In re Michel, 21 I. & N.Dec. 1101 (BIA 1998). At the same time, the IIRIRA established expedited removal procedures under which any non-LPR, such as aliens who entered the country illegally or overstayed their visas, can be removed from the United States. See 8 U.S.C. § 1228(b). However, 8 U.S.C. § 1228(b)(1) allows the Attorney General, in his discretion, to determine the removability of a criminal non-LPR under 8 U.S.C. § 1227(a)(2)(A)(iii) and issue an order of removal of a non-LPR pursuant to the procedures of 8 U.S.C. § 1229a, which would render a non-LPR potentially eligible for a discretionary waiver under section 1182(h), rather than the more restrictive, expedited removal proceedings provided for under 8 U.S.C. § 1228(b).

Discretionary relief under section 1182(h)(1)(B) is therefore also available to non-LPRs, so long as they are subject to removability in a proceeding under INA § 240, codified at 8 U.S.C. § 1229a, and not INA § 238(b), codified at 8 U.S.C. § 1228(b). See In re Ayala-Arevalo, Interim Dec. (BIA) 3371, 1998 WL 833810 (1998). On the other hand, under 8 U.S.C. § 1228(b)(5), a non-LPR subject to expedited removal proceedings is ineligible for any discretionary relief or waiver of removal.5

Both LPR and non-LPR aggravated felons are explicitly precluded from discretionary relief under section 1182(h) if they have been convicted of or have 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). Moreover, neither LPRs nor non-LPRs are eligible for section 1182(h) relief if they have been convicted of a drug offense, except for "a single offense of simple possession of 30 grams or less of marijuana." Id. The petitioner was convicted of knowingly taking with the intent to purloin or steal a quantity of United States currency exceeding $1,000, representing deposits that were federal insured, in violation of 18 U.S.C. § 2113(b), which, if she were a non-LPR subject to 8 U.S.C. § 1229a removal proceedings, would not preclude her from an opportunity to seek a discretionary waiver of removal on the basis of extreme family hardship under 8 U.S.C. § 1182(h)(1)(B).

A. Jurisdiction

As a general matter, this court has jurisdiction over habeas petitions brought by aliens pursuant to 28 U.S.C. § 2241. See Calcano-Martinez v. INS, 232 F.3d 328, 342 (2d Cir.2000); St. Cyr v. INS, 229 F.3d 406, 409-10 (2d Cir.2000); Henderson v. INS, 157 F.3d 106, 122 (2d Cir.1998). The government argues, however, that the court lacks jurisdiction over the pending petition because the petitioner failed to exhaust her administrative remedies by presenting her equal protection challenge to the IJ and BIA. In response, the petitioner notes that an exception to an exhaustion requirement exists where an administrative appeal would be futile or where a petitioner raises a constitutional claim, as here, that cannot be decided by the administrative agency. The government in turn argues that such exceptions to the exhaustion requirement based on the IJ's and BIA's inability to pass on constitutional challenges to the INA do not apply when a statute conditions jurisdiction upon exhaustion.

In support of its argument, the government notes that 8 U.S.C. § 1252(d) provides:

A court may review a final order of removal only if —

(1) the alien has exhausted all administrative remedies available to the alien as of right, and

(2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order.

The government places heavy reliance on Bastek v. Federal Crop Insurance Corp., 145 F.3d 90, 94 & n. 4 (2d Cir.1998). In Bastek, the court stated that, "[i]f Congress has not explicitly required exhaustion, judicial exhaustion doctrine provides that courts may, in their discretion, waive administrative exhaustion under certain circumstances." 145 F.3d at 94. The government argues that the language of 8 U.S.C. § 1252(d) creates a jurisdictional statutory exhaustion requirement which is applicable to this case. The government contends that it is therefore mandatory that the petitioner raise her equal protection claim before the IJ or BIA before bringing a habeas petition on the basis of this claim.

At the same time, the government does not dispute that the IJ and BIA do not have authority to adjudicate...

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  • Beharry v. Reno, 98 CV 5381(JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 22, 2002
    ...section 212(h) violates the equal protection clause because of its unavailability to lawful permanent residents. Jankowski v. I.N.S., 138 F.Supp.2d 269 (D.Conn.2001). This decision is currently on appeal to the court of appeals. See Barton v. Ashcroft, 171 F.Supp.2d 86, 92 (D.Conn.2001) (no......
  • Jankowski-Burczyk v. I.N.S., Docket No. 01-2353.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 29, 2002
    ...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 furt......
  • Barton v. Ashcroft, 3:01CV881(GLG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • October 25, 2001
    ...statutorily required under section 1252(d)(1) only for appeals to Courts of Appeals of final orders of removal. See Jankowski v. INS, 138 F.Supp.2d 269, 275 (D.Conn. 2001) (holding that section 1252(d) applies only to judicial review of final orders of removal in the Courts of Appeals); Wel......
  • Roman v. Ashcroft, No. 1:01CV1236.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • January 4, 2002
    ...discretionary relief to LPR aggravated felons but not to otherwise identically situated non-LPR aggravated felons." Jankowski v. INS, 138 F.Supp.2d 269, 281 (D.Conn.2001). 9. Newton v. INS, 736 F.2d 336, 340 (6th Cir. 1984) (finding that the exclusion of exchange visitors from eligibility f......
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