Maria v. McElroy
| Decision Date | 07 October 1999 |
| Docket Number | No. 98 CV 6596(JBW).,98 CV 6596(JBW). |
| Citation | 68 F.Supp.2d 206 |
| Parties | Eddy J. MARIA, Petitioner, v. Edward McELROY, District Director, New York District, U.S. Immigration Service, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Nancy Morawetz, New York City, Hughes Hubbard & Reed LLP., New York City, by Renee C. Redman, Ressler & Ressler, New York City, by Jose Alexis Rojas, for petitioner.
Zachary W. Carter, United States Attorney, Brooklyn, N.Y., by Scott Dunn, Mary Elizabeth Delli-Pizzi, Patrick Shen, for respondent.
AMENDED MEMORANDUM AND ORDER
TABLE OF CONTENTS
I. INTRODUCTION.............................................................. 209
II. FACTS..................................................................... 209
A. Treatment of "Aggravated Felons" Under the Immigration Laws ........... 209
1. "Aggravated Felony" Definition ..................................... 209
2. Immigration Consequences of Conviction of an "Aggravated Felony" ... 211
B. Discretionary Relief from Deportation ................................. 212
1. Section 212(c) Relief .............................................. 212
2. Section 212(h) Relief .............................................. 212
C. Eddy Maria's Situation ................................................ 213
III. LAW ...................................................................... 215
A. Jurisdiction to Issue a Writ of Habeas Corpus ......................... 215
B. Exhaustion of Administrative Remedies ................................. 216
C. IIRIRA's "Aggravated Felony" Amendments Render Mr. Maria Deportable ... 219
1. Statutory Design.................................................... 219
a. Temporal Reach of "Aggravated Felony" Definitions from the
ADAA to IIRIRA .................................................. 219
b. Temporal Reach of IIRIRA Section 321 ............................ 220
2. The Constitution Does Not Prevent Application of Section 321 to
Render Mr. Maria Deportable ........................................ 222
a. Due Process Clause .............................................. 222
b. Ex Post Facto Clause ............................................ 224
D. AEDPA's Restrictions on Section 212(c) Relief Do Not Apply to Acts
Before Enactment ...................................................... 225
1. Statutory Language Does Not Support Retroactivity .................. 226
2. Ambiguity Does Not Support Retroactivity ........................... 228
3. Rule of Lenity ..................................................... 230
4. Avoidance of Constitutional Issues Supports Non-retroactivity ...... 230
a. Due Process Clause .............................................. 231
b. Ex Post Facto Clause ............................................ 231
5. International Law .................................................. 231
a. The International Covenant of Civil and Political Rights ........ 231
b. Customary International Law ..................................... 233
E. IIRIRA's Restrictions on Family Hardship Relief ....................... 234
V. RATIONALE OF STATUTE ..................................................... 235
VI. CONCLUSION ............................................................... 236
In support of his petition for a writ of habeas corpus and his complaint for declaratory and injunctive relief with a stay of deportation, petitioner Eddy Maria challenges the decision of the Board of Immigration Appeals (BIA) finding him (1) deportable as an "aggravated felon" and (2) ineligible for any relief from deportation on humanitarian grounds under section 212(h) and former section 212(c) of the Immigration and Nationality Act (INA).
The decision of the BIA was based on provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009. Both Acts were adopted after Mr. Maria committed the offense for which the Immigration and Naturalization Service (INS) seeks to deport him. Mr. Maria challenges the applicability of AEDPA and IIRIRA to his case on both statutory and constitutional grounds. For the reasons indicated below, he is entitled only to partial relief: he is deportable, but he is eligible for a humanitarian hearing determining whether he should be permitted to remain in the United States.
The parties do not dispute that under the law in effect at the time petitioner pled guilty to attempted unarmed robbery and was sentenced to two to four years in prison, he was not deportable as an "aggravated felon" because he received a sentence of under five years. The government contends, however, that Mr. Maria was rendered deportable by the enactment of IIRIRA several months after his guilty plea. IIRIRA lowered the sentence necessary for a theft or burglary offense to be considered an "aggravated felony" from five years to one year.
"Aggravated felony" is a congressionally-created term which entered the legal lexicon via the Anti-Drug Abuse Act of 1988 (ADAA), a comprehensive drug enforcement statute which included a number of provisions concerning criminal aliens. See ADAA, Pub.L. No. 101-690, 102 Stat. 4181. Its evolution from a term comprising a small number of extremely serious crimes into one encompassing a broad array of offenses has taken place in a number of stages. The ADAA defined as "aggravated felonies" murder, drug trafficking, illicit trafficking in firearms or destructive devices and any attempt or conspiracy to commit such acts within the United States. Id. § 7342, 102 Stat. at 4469-70. It made conviction of such an offense a basis for deportation. Id. § 7344, 102 Stat. at 4470-71.
Since the ADAA's passage, successive immigration statutes have built on its "aggravated felony" definition, progressively expanding the term to cover a wide variety of offenses. One commentator has observed:
The definition of aggravated felony at INA § 101(a)(43), 8 U.S.C. § 1101(a)(43), began as one paragraph in 1988. Eight years later the provision consists of twenty-one paragraphs labeled (A) through (U). In 1988 the statute identified three general crimes. Today over fifty crimes or general classes of crimes are enumerated. The amount of loss, maximum possible penalty for the crime and actual sentence imposed, regardless of any suspension or probation of that sentence, are the current mechanisms to qualify crimes as aggravated felonies.
Richard L. Prinz, The 1996 Criminal Alien Legislation in 1997: An Overview, in Practice Under IIRAIRA: One Year Later 205, 207 (R. Patrick Murphy ed., 1997). See generally Terry Coonan, Dolphins Caught in Congressional Fishnets— Immigration Law's New Aggravated Felons, 12 Geo.Immigr.L.J. 589, 592-605 (1998); Brent K. Newcomb, Comment, Immigration Law and the Criminal Alien: A Comparison of Policies for Arbitrary Deportations of Legal Permanent Residents Convicted of Aggravated Felonies, 51 Okla.L.Rev. 697, 698-701 (1998).
The Immigration Act of 1990 (IMMACT) added money laundering, crimes of violence, and additional grounds of controlled substance trafficking to the list of "aggravated felonies." See IMMACT, Pub.L. No. 101-649, § 501(a)(2), (3), 104 Stat. 4978, 5048. IMMACT also made the "aggravated felony" definition applicable to both federal and state convictions as well as to convictions under analogous foreign laws in certain circumstances. See id. § 501(a)(5), (6), 104 Stat. at 5048.
A plethora of new offenses were denominated "aggravated felonies" by the Immigration and Technical Corrections Act of 1994 (INTCA), Pub.L. No. 103-416, 108 Stat. 4320. These included theft and burglary offenses for which a sentence of at least five years was imposed, kidnapping for ransom, child pornography, RICO violations punishable by a minimum of five years, management of a prostitution business, slavery, espionage, sabotage and treason, fraud or tax evasion involving the loss of more than $200,000, alien smuggling for commercial gain, document fraud where the sentence imposed was at least five years, and failure to appear for service of sentence of a crime punishable by fifteen years or more. See id. § 222(a), 108 Stat. at 4320-22.
In 1996, AEDPA broadened the scope of the definition still further. It redefined previously designated "aggravated felonies," for example, by replacing the alien smuggling ground's commercial gain requirement with the imposition of a five-year sentence and by decreasing by two-thirds the number of years by which a crime must be punishable for failure to appear for service of sentence to constitute an "aggravated felony." AEDPA § 440(e)(3), 110 Stat. 1214, 1277. It also added to the "aggravated felony" roster obstruction of justice, perjury and subornation of perjury, bribery of a witness and failure to appear to answer a felony charge punishable by two or more years, AEDPA § 440(e)(8), 110 Stat. at 1278, as well as numerous less serious offenses, see, e.g., id. § 440(e)(1), 110 Stat. at 1277 (); id. § 440(e)(2), 110 Stat. at 1277-78 (); id. § 440(e)(4), (6), 110 Stat. at 1278 (); id. § 440(e)(6), (7), 110 Stat. at 1278 (...
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