Jurado-Gutierrez v. Greene, 97-Z-1756.

• Decision Date: 29 September 1997
• Docket Number: No. 97-Z-1756.,97-Z-1756.
• Parties: Manual JURADO-GUTIERREZ, Petitioner, v. Joseph GREENE, District Director, Immigration and Naturalization Service, Executive Office for Immigration Review, and John Doe, Respondents.
• Court: U.S. District Court — District of Colorado

977 F.Supp. 1089

Manual JURADO-GUTIERREZ, Petitioner, v. Joseph GREENE, District Director, Immigration and Naturalization Service, Executive Office for Immigration Review, and John Doe, Respondents.

No. 97-Z-1756.

United States District Court, D. Colorado.

September 29, 1997.

Sandra Saltrese-Miller, Boulder, CO, Jim Salvator, Lafayette, CO, for Petitioner.

Michael E. Hegarty, Asst. U.S. Atty., Denver, CO, Weldon S. Caldbeck, of Counsel, Asst. Dist. Counsel I.N.S., Denver, CO, for Respondents.

MEMORANDUM OPINION AND ORDER

WEINSHIENK, District Judge.

The matter before the Court is the Complaint For Petition For Writ Of Habeas Corpus (With Stay Of Deportation), filed August 12, 1997. Petitioner is a thirty-one year old native and citizen of Mexico. He has been a lawful permanent resident of the United States since 1988. On December 11, 1995, petitioner pled guilty in state court to possession with intent to distribute a controlled substance (cocaine), and was sentenced to four years at Adams County Community Corrections. Under the Immigration and Nationality Act (INA), as amended, petitioner's state law conviction made him deportable. See 8 U.S.C. § 1251(a)(2)(B)(i). At the time petitioner pled guilty, § 212(c) of the INA gave petitioner the right to a discretionary hearing before an Immigration Judge, at which he could apply for a waiver of deportation. See INA § 212(c) (codified at 8 U.S.C. § 1182(c)).

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 440(d) of AEDPA amended § 212(c) and eliminated discretionary hearings for aliens convicted of most drug crimes, including petitioner's. On September 9, 1996, the Immigration and Naturalization Service (INS) initiated deportation proceedings against petitioner. On December 19, 1996, petitioner's application for discretionary relief under § 212(c) was denied by an Immigration Judge, and his appeal was dismissed on July 24, 1997, by the Board of Immigration Appeals (BIA). Citing AEDPA § 440(d), the BIA ruled that petitioner was statutorily ineligible for discretionary relief under § 212(c).

In his Complaint, petitioner asserted that § 440(d), as applied to him, was unconstitutionally retroactive, arguing that eliminating his right to a discretionary hearing after he pled guilty to a deportable offense unjustly disrupted his settled expectations. Petitioner also argued that § 440(d) violated his due process right to a hearing prior to deportation. At a September 3, 1997 hearing, the Court denied petitioner's Complaint on these two grounds. Application of AEDPA § 440(d) to petitioner was not unconstitutionally retroactive. See Landgraf v. USI Film Products, 511 U.S. 244, 274, 114 S.Ct. 1483, 1501, 128 L.Ed.2d 229, 258 (1994) ("We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred."); Castilleja v. INS, 1997 WL 446641 (10th Cir. July 28, 1997) (unpublished opinion); Fernandez v. INS, 113 F.3d 1151, 1153 (10th Cir.1997).

Furthermore, petitioner has no due process right to a § 212(c) discretionary hearing prior to deportation. See Kolster v. INS, 101 F.3d 785, 789 (1st Cir.1996) ("Aliens do not have a cognizable reliance interest in the availability of discretionary 212(c) relief."); Bassett v. INS, 581 F.2d 1385, 1386 (10th Cir.1978) ("Although certain due process rights are extended to alien residents, ... the right to stay in the country is not protected.").

At oral argument, counsel for petitioner alleged a violation of the equal protection principle in the Fifth Amendment to the United States Constitution, which the Court now decides.

As a threshold issue, the Court must decide whether, in view of AEDPA § 440(a) and the recently enacted Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), jurisdiction exists to hear this habeas corpus petition. The INA, as amended by AEDPA and IIRIRA, states: "[N]otwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this-Act." IIRIRA § 306(a) (codified at 8 U.S.C. § 1252(g)).

However, the statute does not mention habeas relief for constitutional violations. Thus, despite the statute's sweeping language, the question remains whether the federal district courts still have statutory jurisdiction under 28 U.S.C. § 2241, or constitutional jurisdiction under the Suspension Clause, to review alleged constitutional violations. See U.S. Constit. art. I, § 9, cl. 2 ("The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."); Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053, 100 L.Ed.2d 632 (1988) ("[W]here Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear."); Yang v. INS, 109 F.3d 1185, 1196 (7th Cir.1997) (stating that IIRIRA § 306(a) abolishes review under § 2241, but leaves constitutional habeas review intact); Fernandez, 113 F.3d at 1154-1155 (discussing, but expressing no opinion on, whether judicial review remains under either § 2241 or the Constitution's Suspension Clause). Indeed, in Fernandez, the government conceded that habeas review remains for "substantial" constitutional violations. Id. at 1156.

The Court is satisfied that petitioner's equal protection claim alleges a colorable, substantial constitutional violation.¹ At least six federal district courts have addressed this issue and held that jurisdiction remains to hear habeas petitions for alleged substantial constitutional violations. See Mojica v. Reno, 970 F.Supp. 130, 155-61 (E.D.N.Y. 1997); Ozoanya v. Reno, 968 F.Supp. 1, 5-6 (D.D.C.1997); Yesil v. Reno, 958 F.Supp. 828, 837-39 (S.D.N.Y.1997) Veliz v. Caplinger, 1997 WL 61456, *2 (E.D.La. Feb.12, 1997); Powell v. Jennifer, 937 F.Supp. 1245, 1252-53 (E.D.Mich.1996); Dunkley v. Perryman, 1996 WL 464191, *2-3 (N.D.Ill. Aug.9, 1996). Therefore, this Court has jurisdiction, either under 28 U.S.C. § 2241 or the Constitution, to adjudicate this claim. See Webster, 486 U.S. at 603, 108 S.Ct. at 2053 ("[S]erious constitutional questions ... would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim."); Czerkies v. U.S. Dept. of Labor, 73 F.3d 1435, 1438-39 (7th Cir.1996) (cited with approval in Fernandez, 113 F.3d at 1155) (Jurisdiction-precluding statutes "do not, unless Congress expressly provides, close the door to constitutional claims, provided that the claim is colorable....").

Petitioner's equal protection claim relies on a distinction in the INA that sets forth two categories of aliens that are not permitted to live in the United States: deportable aliens and excludable aliens. See Landon v. Plasencia, 459 U.S. 21, 25-26, 103 S.Ct. 321, 325-26, 74 L.Ed.2d 21 (1982) (noting the differences between deportation and exclusion proceedings). Deportable aliens, defined in 8 U.S.C. § 1251(a), are those that reside within the United States but whom may be deported for various reasons, including commission of certain crimes. Excludable aliens, defined in 8 U.S.C. § 1182(a), are those who may be denied entrance into the United States for various reasons. Within the "excludable aliens" section, Congress enacted INA § 212(c), which provides that excludable aliens who were legal permanent residents for seven years, and proceeded abroad only temporarily, may be admitted at the discretion of the Attorney General.² 8 U.S.C. § 1182(c). In short, Congress identified a subset of excludable aliens, those who were legal permanent residents for seven years and left the country only temporarily, and provided them with a discretionary hearing prior to being removed from the United States. On its face, § 212 discretionary relief applied only to exclusion proceedings, and not aliens in deportation proceedings.³ See 8 U.S.C. § 1251.

This discrepancy did not go unnoticed. In 1976, the Court of Appeals for the Second Circuit held that in order to satisfy equal protection requirements, § 212(c) discretionary relief must be available for aliens that were legal permanent residents for seven years, regardless of whether they are in deportation proceedings (i.e., never left the United States) or exclusion proceedings (i.e., left the United States only temporarily) Francis v. INS, 532 F.2d 268, 269 (2d Cir. 1976). Prior to Francis, a legal permanent resident of seven years who was convicted of a narcotics offense, and who happened to take a trip outside the United States, was entitled to a discretionary hearing before being removed. In contrast, the same alien who did not take a trip outside the United States was not entitled to a hearing. See, e.g., Matter of Arias-Uribe, 13 I. & N. Dec. 696, 1971 WL 24403 (BIA 1971). Applying the "minimal scrutiny" test, Francis held that this distinction was arbitrary and "wholly unrelated to any legitimate governmental interest." Francis, 532 F.2d at 273. Accordingly, Francis required that § 212 discretionary relief be afforded to legal permanent aliens living in the United States for seven years, regardless of whether they left the United States temporarily. Id.

The rule in Francis has been implemented by the BIA and universally accepted by the courts of appeals, including the Tenth Circuit. See In re Silva, 16 I. & N. Dec. 26, 1976 WL 32326 (BIA 1976); Vissian v. INS, 548 F.2d 325, 328 n. 3 (10th Cir.1977). Significantly, Congress never made § 212(c) discretionary relief available to legal permanent aliens in deportation proceedings. Rather, § 212(c) discretionary relief was extended to aliens in deportation proceedings by case law in order to comply with the equal protection principle in the Fifth...