Mojica v. Reno
| Decision Date | 11 July 1997 |
| Docket Number | No. CV 97-1085(JBW).,No. CV 97-1869(JBW).,CV 97-1085(JBW).,CV 97-1869(JBW). |
| Citation | 970 F.Supp. 130 |
| Parties | Guillermo MOJICA, Plaintiff, v. Janet RENO, as Attorney General of the United States; Doris Meissner, as Commissioner of the Immigration and Naturalization Service; Edward McElroy, as New York District Director of the Immigration and Naturalization Service; John B.Z. Caplinger, as New Orleans District Director of the Immigration and Naturalization Service; Immigration and Naturalization Service, Respondents. Saul NAVAS, Plaintiff, v. Janet RENO, as Attorney General of the United States; Doris Meissner, as Commissioner of the Immigration and Naturalization Service; Edward McElroy, as New York District Director of the Immigration and Naturalization Service; Immigration and Naturalization Service, Respondents. |
| Court | U.S. District Court — Eastern District of New York |
Bretz & Associates, Irwin Berowitz, Alan Strauss, New York City, for Petitioner Mojica.
The Legal Aid Society by Helaine Barnett, Gemma Solimene, Olivia Cassin, Scott A. Rosenberg, Brooklyn, NY, Manuel D. Vargas, New York City, for Petitioner Navas.
Zachary W. Carter, United States Attorney, Eastern District of New York, Brooklyn, NY by Scott Dunn, Mary Elizabeth Delli-Pizzi, for Respondent-Defendants.
AMENDED MEMORANDUM AND JUDGMENTS
I. Introduction ................................................................. 136
II. Facts ........................................................................ 136
A. Discretionary Relief from Deportation and the Recent Amendments ........... 136
B. Saul Navas ................................................................ 138
C. Guillermo Mojica .......................................................... 140
III. Constitutional, Statutory and Historical Context ............................. 142
A. History of Immigration .................................................... 143
B. Human Rights Obligations of the United States ............................. 146
C. Habeas Corpus ............................................................. 152
D. Presumption Against Retroactivity ......................................... 154
E. Judicial Review of Administrative Actions ................................. 155
IV. Jurisdiction ................................................................. 156
A. Subject Matter Jurisdiction ............................................... 156
(1) Statutory Background .................................................. 157
(a) Section 2241 of Title 28 .......................................... 157
(b) INA Section 106(a), The AEDPA, and The IIRIRA ..................... 158
(2) Habeas Corpus Jurisdiction Under Section 2241 Not Repealed ............ 159
(3) Scope of Section 2241 Habeas Review ................................... 163
(4) Section 2241 Habeas Corpus Jurisdiction Available in Instant
Case ................................................................ 163
(a) A District Court May Review a Section 2241 Petition ............... 163
(b) Petitioners in Custody For Habeas Purposes ........................ 164
B. Eastern District of New York Is the Proper Forum: Personal Jurisdiction
and Venue ............................................................... 165
(1) Court Has Personal Jurisdiction Over Petitioners' Custodians .......... 165
(2) Venue Is Proper with Regard to Petitioners ............................ 167
V. Protection of Legal Permanent Residents Against Arbitrary Deportation ........ 168
A. Statutory History of Section 212(c) and Section 440(d) .................... 168
B. Section 440(d) Does Not Retroactively Eliminate Right of Petitioners
to a Fairness Hearing ................................................... 168
(1) Constitutional Barriers to Retroactivity ............................... 169
(2) Manifest Congressional Design .......................................... 172
(3) Applying the Default Rule Against Retroactivity ........................ 173
(a) Basic Application of Landgraf ...................................... 173
(b) Traditional Principles of Statutory Interpretation ................. 180
(c) No Deference to the Administrative Agency .......................... 180
(d) A Fortiori Application to Those Whose Cases Were Being
Processed by the INS ............................................. 182
VI. Conclusion ................................................................... 182
This is an important case of first impression, the resolution of which will affect the rights of many legal permanent residents. Petitioners, long time United States residents, seek a court ruling that they are entitled to a hearing determining whether they should not be deported because of humanitarian factors — commonly known as section 212(c) relief. At issue is the new policy and practice of the United States Attorney General to automatically deport certain legal permanent residents. Her action is predicated on her conclusion that there must be retroactive application of section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L.No. 104-132, 110 Stat. 1214 (1996). Section 440(d) bars legal permanent residents convicted of certain crimes from seeking a 212(c) waiver of deportation.
The Attorney General, it is charged, without notice and without reason, arbitrarily and capriciously reversed the ruling of the Board of Immigration Appeals that petitioners had a right to a 212(c) hearing. The government contends: 1) this court has no jurisdiction to consider this issue, and 2) even though the petitioners were convicted of crimes before passage of the AEDPA, they have no entitlement to a waiver hearing — that is to say, rehabilitation, hardship, deleterious effects on family and other 212(c) factors are now retroactively irrelevant.
It is not necessary to consider petitioners' constitutional arguments because the case can be decided as a matter of statutory interpretation. Nevertheless, in construing the statutes' meaning, history, statutory and other protections, and constitutional context provide useful background. The courts have the obligation to consider the context of legislation to determine meaning; this duty is independent of any theory of textualism in interpretation. See, e.g., John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum.L.Rev. 673 (1997).
To prevent the extended bureaucracy and the executive departments from abusing their powers, Congress has fashioned an extensive set of protections for all individuals resident in our land, providing appeals and other controls by the Judiciary. Moreover, Congress can be presumed to have acted in the high moral and ethical traditions of the United States after consideration of relevant historical and political factors and with consciousness of the United States' role as global defender of human rights. The courts cannot assume, as the government now in effect suggests they should, that Congress acted contrary to the design and thrust of closely related law.
For reasons set forth below, this court has habeas corpus and declaratory judgment competence, and personal jurisdiction over petitioners' custodians. Venue is proper, and petitioners are entitled to the hearing they seek. This conclusion was set forth in the memorandum and order of this court entered May 30, 1997. See Mojica v. Reno, 1997 WL 289700 (E.D.N.Y.1997). That memorandum and order was issued without an explanatory memorandum to expedite appeals.
It is conceded that petitioners Saul Navas and Guillermo Mojica would have been, until quite recently, eligible for a 212(c) hearing. The government argues that, in the wake of the AEDPA, they are no longer eligible. Section 212(c) relief, its history, and recent amendments to it are addressed immediately below.
Legal permanent residents convicted of a crime making them deportable have long had a right to seek a waiver of exclusion or deportation under section 212(c) of the Immigration and Nationality Act (INA) as long as they had a "lawful unrelinquished domicile of seven consecutive years in the United States." See INA § 212(c), 8 U.S.C. § 1182(c) (); see also Francis v. INS, 532 F.2d 268 (2d Cir.1976) (); Matter of Silva, 16 Int. Dec. 26 (BIA 1976) (). It is conceded that petitioners have had more than the necessary domicile in the United States to have triggered section 212(c) rights to a hearing. It is important to bear in mind that the right is to a hearing only and to the exercise of discretion, not to immunity from deportation.
A long-time legal permanent resident accused of any crime triggering deportability could thus be assured that, even if he or she pled guilty or was convicted in criminal proceedings after the trial, there would be available a waiver of deportation in subsequent deportation proceedings before an Immigration Judge. See generally Matter of Lok, 18 Int. Dec. 101 (BIA 1981), aff'd on other grounds, Lok v. INS, 681 F.2d 107 (2d Cir. 1982) (). The Immigration Judge's decision to grant the waiver depends upon a weighing of many factors. Among the favorable elements considered by an Immigration Judge under section 212(c)...
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