Perez v. Elwood

• Decision Date: 28 June 2002
• Docket Number: No. 01-3004.,01-3004.
• Parties: Carlos PEREZ, Appellant v. Kenneth J. ELWOOD, District Director<SMALL><SUP>*</SUP></SMALL> Immigration and Naturalization Service.
• Court: U.S. Court of Appeals — Third Circuit

294 F.3d 552

Carlos PEREZ, Appellant v. Kenneth J. ELWOOD, District Director^* Immigration and Naturalization Service.

No. 01-3004.

United States Court of Appeals, Third Circuit.

Argued May 20, 2002.

Filed: June 28, 2002.

COPYRIGHT MATERIAL OMITTED

Lawrence H. Rudnick, Derek W. Gray (Argued), Steel, Rudnick & Ruben, Philadelphia, PA, Counsel for Appellant.

Robert D. McCallum, Jr., Assistant Attorney General, Christine A. Bither, Senior Litigation Counsel, James E. Grimes (Argued), U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Margaret Perry, Esquire, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Counsel for Appellee.

Before: BECKER, Chief Judge, GREENBERG, Circuit Judge, and BARZILAY, Judge, U.S. Court of International Trade.^**

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal by Carlos Perez, a Colombian national and U.S. permanent resident, from an order of the District Court for the Middle District of Pennsylvania, the district where Perez is held in INS detention, denying his petition for a writ of habeas corpus. The petition challenged the Board of Immigration Appeals's ("BIA") affirmance of an order of removal entered by an Immigration Judge ("IJ") following Perez's conviction for conspiracy to launder money. In his habeas petition, Perez challenged the BIA's conclusion that he is ineligible to apply for relief pursuant to former § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c) (1994) (repealed). Perez argued that because he was convicted for conduct that occurred before the repeal of § 212(c), he was entitled to apply for a waiver of deportation under that provision. The District Court denied the writ on the ground that Perez was ineligible to apply for relief under § 212(c) because, under the new definition of the time of "conviction" created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546, Perez was convicted after the repeal of § 212(c).

Perez relies here on the Supreme Court's decision in INS v. St. Cyr, 533 U.S 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), contending that it overruled Steele v. Blackman, 236 F.3d 130 (3d Cir.2001), and DeSousa v. Reno, 190 F.3d 175 (3d Cir.1999), prior Third Circuit cases that held that aliens whose removal proceedings, like Perez's, were initiated after the repeal date of § 212(c), were ineligible for relief under that section. Perez also contends that St. Cyr requires us to hold that aliens like Perez, who are removable due to criminal conduct that occurred prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, and IIRIRA, are entitled to apply for relief under § 212(c). While we acknowledge that St. Cyr rejected the reasoning that we employed in Steele and DeSousa, we nonetheless will affirm the order of the District Court on the ground upon which the District Court relied, i.e., that under IIRIRA's definition of "conviction," Perez was convicted after the repeal of § 212(c) and cannot now obtain relief under the repealed statute.

I. Facts & Procedural History

Perez entered the United States in 1972 at the age of six and has lived in the U.S. since then as a lawful permanent resident. In January 1997, Perez was tried and found guilty by a jury in the United States District Court for the Northern District of California of conspiracy to launder money in violation of 18 U.S.C. § 371, based on criminal conduct that occurred in 1992. He was sentenced in June 1997 to 60 months in prison.

On October 27, 1999, while he was in prison, the INS issued Perez a Notice to Appear alleging that his criminal conviction rendered him removable from the U.S. On August 22, 2000, an IJ found Perez removable under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his conviction for an "aggravated felony" as defined by 8 U.S.C. §§ 1101(a)(43)(D) & (a)(43)(U), which includes conspiracy to commit money laundering in the amount for which Perez was convicted. The IJ also found Perez ineligible for withholding of removal under the Convention Against Torture ("CAT"). Perez was released from criminal custody to the custody of the INS on August 24, 2000, after serving 52 months in prison.

Perez appealed the IJ's order to the BIA, contending: (1) that his conspiracy conviction did not constitute an "aggravated felony" (because he was not convicted of the underlying crime, only conspiracy); (2) that the IJ erred in denying his CAT claims; and (3) that he should have been allowed to apply for a waiver of deportation under former INA § 212(c), 8 U.S.C. § 1182(c) (1994) (repealed), because the criminal conduct underlying his conviction occurred before that section was repealed. The BIA affirmed the IJ's order, concluding that: (1) Perez was convicted of an aggravated felony within the meaning of the INA; and (2) although Perez qualifies to apply for withholding of removal under the CAT, he failed to demonstrate that it is more likely than not that he will be tortured if returned to Colombia, and is therefore not entitled to receive such relief. The BIA also rejected Perez's claim that he should have been allowed to apply for a § 212(c) waiver, citing Steele for the proposition that Perez is ineligible to apply for a § 212(c) waiver because removal proceedings were instituted against him after April 1, 1997, the effective date of the repeal of § 212(c).

Perez thereupon filed a petition for a writ of habeas corpus in the District Court for the Middle District of Pennsylvania, seeking a declaration that the retroactive application of IIRIRA (which repealed INA § 212(c)) to his criminal conduct is unconstitutional, and seeking remand of his case to the IJ for consideration of relief under § 212(c). After holding its decision in abeyance until the Supreme Court issued its decision in St. Cyr, the District Court dismissed Perez's petition based on the fact that Perez's conviction occurred in June 1997, which was after the effective date of the section of IIRIRA that repealed § 212(c). The District Court concluded that relief under § 212(c) was therefore not available to Perez, and that there is nothing retroactive about his inability to apply for a waiver under that section.

Perez contends that the Supreme Court's holding in St. Cyr — that relief under INA § 212(c) remains available to aliens whose convictions were obtained by plea bargains and who would have been eligible for § 212(c) relief under the law in effect at the time of the plea — (1) overruled Steele, in which we held that § 212(c) relief is not available to aliens whose removal proceedings were initiated after the repeal of § 212(c); and (2) "suggested that 212(c) relief could ... remain available to aliens whose criminal conduct predated the enactment of the 1996 immigration amendments." Perez submits that, on the basis of St. Cyr, we must find that it would be unfairly retroactive to deny him the opportunity to apply for a waiver under § 212(c). The government takes issue with these contentions, but also endorses the reasoning of the District Court, that because Perez's June 1997 conviction was entered after former INA § 212(c) was repealed on April 1, 1997, § 212(c) is not available as relief from his removal order.

The District Court had jurisdiction pursuant to 28 U.S.C. § 2241, which grants district courts the authority to issue writs of habeas corpus in cases involving detainees held under the authority of the U.S. See St. Cyr, 533 U.S. at 300-01, 121 S.Ct. 2271; Steele, 236 F.3d at 133 (holding that district courts retain the authority to issue writs of habeas corpus to detained aggravated felon aliens following the passage of IIRIRA). We have jurisdiction to review the District Court's denial of a writ of habeas corpus based on 28 U.S.C. §§ 1291 & 2253.

II. Statutory Background

Section 212 of the INA of 1952, formerly codified at 8 U.S.C. § 1182(c), excluded certain classes of aliens from the U.S., including those convicted of offenses involving moral turpitude or illicit traffic in narcotics. See 66 Stat. 163, 187 (1952). The section was subject to a waiver provision, § 212(c), which was codified at 8 U.S.C. § 1182(c). It provided:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General....

8 U.S.C. § 1182(c) (repealed). Although § 212(c) "was literally applicable only to exclusion proceedings, ... it ... has been interpreted by the Board of Immigration Appeals ... to authorize any permanent resident alien with `a lawful unrelinquished domicile of seven consecutive years' to apply for a discretionary waiver from deportation." St. Cyr, 533 U.S. at 295, 121 S.Ct. 2271 (citing Matter of Silva, 16 I. & N. Dec. 26, 30 (1976)).

In 1990, Congress amended § 212(c) to bar discretionary relief to those convicted of an "aggravated felony" who had served a term of imprisonment of at least five years. See Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978, 5052 (amending 8 U.S.C. § 1182(c)). When Congress enacted AEDPA on April 24 1996, it included § 440(d), which barred § 212(c) relief to those aliens who were convicted of a broad set of offenses, including aggravated felonies, drug convictions, certain weapons or national security violations, and multiple convictions involving crimes of moral turpitude. See Pub.L. 104-132, 1110 Stat. 1214, 1277-79 (1996) (amending 8 U.S.C. § 1182(c)).

Later that same year, on September 30, 1996, Congress passed IIRIRA. IIRIRA § 304(b), which went into effect on April 1, 1997, repealed INA § 212(c), and replaced it with a new section, which is now codified at 8 U.S.C. § 1229b, and which gives the Attorney General author...