Pequeno-Martinez v. Trominski, CIV.B-02-214, CIV.B-02-145, CIV.B-02-144.
| Citation | 281 F.Supp.2d 902 |
| Decision Date | 08 September 2003 |
| Docket Number | No. CIV.B-02-214, CIV.B-02-145, CIV.B-02-144.,CIV.B-02-214, CIV.B-02-145, CIV.B-02-144. |
| Parties | Jaime PEQUENO-MARTINEZ, v. E.M. TROMINSKI, INS District Director and John Ashcroft, Attorney General of the United States. Oswaldo Calderon-Terrazas, v. Aaron Cabrera, Acting Director, HLG/DO, the Immigration & Naturalization Service, and John Ashcroft, United States Attorney General. Eugenio Reyna-Montoya, v. Aaron Cabrera, Acting Director, HLG/ DO, the Immigration & Naturalization Service, and John Ashcroft, United States Attorney General. |
| Court | United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas |
Paula S. Waddle, South Texas Immigration Council, Harlingen, TX, for Petitioner Jaime Pequeno-Martinez.
Jodilynn Marie Goodwin, Attorney at Law, Harlingen, TX, for Petitioner Oswaldo Calderon-Terrazas.
Elisabeth Lisa S. Brodyaga, Attorney at Law, San Benito, TX, for Petitioner Eugenio Reyna-Montoya.
Nancy Lynn Masso, Office of U.S. Attorney, Brownsville, TX, Lisa M. Putnam, Attorney at Law, Harlingen, TX, for Respondents E.M. Trominski, John Ashcroft and Aaron Cabrera.
Three former lawful permanent residents (LPRs) filed petitions seeking writs of habeas corpus from this court after receiving final orders of removal from the Board of Immigration Appeals (BIA). Each has raised statutory and constitutional challenges to the BIA's conclusions that each alien is removable based on a prior conviction and that each alien is ineligible for discretionary cancellation of removal based on the alien's status as an aggravated felon. In Part II of this opinion, the facts are set out in pertinent part. In Part III, this court sets out the standard it has followed to review each petition.
In Part IV, this court holds that it has jurisdiction over these habeas petitions notwithstanding the Department of Homeland Security's argument that habeas review is precluded. The Department of Homeland Security (DHS) argues that this court lacks habeas jurisdiction because all of the petitioners' claims can be heard on direct review in the court of appeals. However, this claim is contrary to the thrust of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Fifth Circuit implicitly rejected it in Flores-Garza v. INS, 328 F.3d 797 (5th Cir.2003), several appellate courts in other circuits have explicitly rejected it, and this court finds the DHS's reliance on a series of pre-St. Cyr transitional rules cases from this circuit unpersuasive on this point.
In Part V, this court holds that Oswaldo Calderon-Terrazas's statutory and constitutional claims are meritless. Specifically, 1) the BIA properly affirmed the immigration judge's determination that Calderon-Terrazas was convicted of an aggravated felony based on his state court order of deferred adjudication for sexual assault of a minor; 2) Calderon-Terrazas is not entitled to be eligible for discretionary cancellation of removal as a matter of substantive or procedural due process; 3) the phrase "sexual abuse of a minor" is not unconstitutionally vague; and 4) the BIA's use of its new summary affirmance procedures did not violate due process.
Next, in Parts VI and VII this court holds that Jaime Pequeno-Martinez and Eugenio Reyna-Montoya's habeas petitions will be stayed pending resolution of the multiple petitions consolidated under the name of Salazar-Regino v. Trominski, Case No. B-02-045, S.D. Tex., Brownsville Division. Most of Reyna-Montoya and Pequeno-Martinez's claims are the same as those raised in Salazar-Regino. Pequeno-Martinez has withdrawn his separate claims, and this court hereby denies Reyna-Montoya's separate claims. Specifically, this court holds that Reyna-Montoya remains convicted for immigration purposes notwithstanding his modified state court order purporting to withdraw his underlying guilty plea nunc pro tunc.
The habeas petitions in each of these cases are largely identical, as are the briefs from both sides. Likewise, these cases present largely the same issues as the Salazar-Regino cases.1 This court will present the common issues just once, using Pequeno-Martinez's case as an illustration of the changes in the immigration laws that gave rise to all of these cases.
Pequeno-Martinez, a citizen of Mexico and former lawful permanent resident (LPR) of this country, pled guilty in December 1996 in Texas state court to possession of marijuana in an amount greater than five but less than fifty pounds, a felony of the third degree. Pequeno-Martinez received deferred adjudication and four years of community supervision. See Texas Code of Crim. Pro. art. 42.12, § 5 (). On the basis of this deferred adjudication, the DHS2 charged Pequeno-Martinez in October 1997 with removability as an alien convicted of a controlled substance offense per 8 U.S.C. § 1227(a)(2)(B)(i), and as an alien convicted of an aggravated felony per 8 U.S.C. § 1227(a)(2)(A)(iii).
In June 1998, the immigration judge terminated removal proceedings against Pequeno-Martinez. [Administrative R. at 101] The judge agreed that Pequeno-Martinez was removable as an alien convicted of a controlled substance offense, but disagreed that this conviction amounted to an aggravated felony because it was only for drug possession, not drug trafficking. [Id. at 104] The judge further held that Pequeno-Martinez was entitled to relief from his controlled substance conviction under the first-time offender exception established by Matter of Manrique, 21 I. & N. Dec. 58, 1995 WL 314732 (BIA 1995).3 [Administrative R. at 105]
The INS appealed, and the BIA reversed the immigration judge by written opinion on July 18, 2002. [Id. at 60-61] This reversal was based on two changes in the BIA's interpretation of the immigration laws that occurred after the immigration judge issued his opinion in 1998.
First, the BIA ruled in Matter of Roldan-Santoyo, 22 I. & N. Dec. 512, 1999 WL 126433 (BIA 1999), that the holding in Matter of Manrique had been superseded by the statutory definition of "conviction" at 8 U.S.C. § 1101(a)(48)(A). This definition was added to the Immigration and Nationality Act (INA) in 1996 by § 322 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and provides as follows:
(48)(A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where —
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
Examining the statute's text and legislative history, the BIA reasoned that Congress "intends that the determination of whether an alien is convicted for immigration purposes be fixed at the time of the original determination of guilt, coupled with the imposition of some punishment." Matter of Roldan-Santoyo, 22 I. & N. Dec. 512, 1999 WL 126433. Accordingly, Matter of Roldan-Santoyo held that "an alien is considered convicted for immigration purposes upon the initial satisfaction of the requirements of section 101(a)(48)(A) of the Act, and that he remains convicted notwithstanding a subsequent state action purporting to erase all evidence of the original determination of guilt through a rehabilitative statute." Id.; see also Moosa v. INS, 171 F.3d 994, 997, 1005-06 (5th Cir.1999) (). Relying on Matter of Roldan-Santoyo, the BIA held that Pequeno-Martinez had been convicted of a controlled substance offense and that relief under Matter of Manrique was no longer available. [Administrative R. at 61]
Second, in Matter of Salazar-Regino, 23 I. & N. Dec. 223, n. 5, 2002 WL 339535 and accompanying text (BIA 2002), the BIA agreed with the Fifth Circuit that simple possession offenses arising in this Circuit were "drug trafficking crimes" and therefore aggravated felonies so long as the offense was a felony under state law, even if it would only be a misdemeanor under federal law.4 Prior to this decision, the BIA had reached the opposite conclusion, holding that simple possession convictions were not aggravated felonies unless they were punishable as felonies under the Controlled Substances Act.5 Relying on Salazar-Regino, the BIA held that Pequeno-Martinez's conviction constituted an aggravated felony. [Administrative R. at 61] The immigration judge's order was vacated and Pequeno-Martinez was ordered deported to Mexico. [Id.] Pequeno-Martinez did not have an opportunity to apply for cancellation of removal. See 8 U.S.C. § 1229b(a)(3) ().
Pequeno-Martinez filed a petition for review in the Fifth Circuit on August 15, 2002. He moved to voluntarily dismiss this petition in October 2002, however, and his motion was summarily granted. He filed a petition for writ of habeas corpus in this court in November 2002, arguing that he is being held in custody pending removal in violation of federal statutory and constitutional law. See 28 U.S.C. § 2241(c)(3).
Pequeno-Martinez argues that the BIA incorrectly interpreted the meaning of the terms "conviction" and "aggravated felony" in Roldan-Santoyo and Salazar-Regino, respectively. Next, Pequeno-Martinez asserts several equal protection violations, including an argument that this court should adopt the reasoning of the Ninth Circuit...
To continue reading
Request your trial