Rogowski v. Reno, Civ. 3:99cv790(PCD).

Citation94 F.Supp.2d 177
Decision Date28 October 1999
Docket NumberNo. Civ. 3:99cv790(PCD).,Civ. 3:99cv790(PCD).
PartiesRafal ROGOWSKI, a/k/a Ralph Rogowski, Petitioner, v. Janet RENO, et al., Respondents.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
94 F.Supp.2d 177
Rafal ROGOWSKI, a/k/a Ralph Rogowski, Petitioner,
Janet RENO, et al., Respondents.
No. Civ. 3:99cv790(PCD).
United States District Court, D. Connecticut.
October 28, 1999.

Page 178

Michael J. Boyle, New Haven, Connecticut, Wanyong Austin, Immigrants' Rights Project of the American Civil Liberties Union, New York City, for plaintiff.


DORSEY, Senior District Judge.

Petitioner seeks a writ of habeas corpus claiming that he is illegally detained by the Immigration and Naturalization Service (INS). He moves for summary judgment to stay his deportation; remand his case to an Immigration Judge (IJ) for a hearing pursuant to former Immigration and Naturalization Act (INA) § 212(c), 8 U.S.C. § 1182(c); and order his release from INS administrative custody. The government moves to dismiss. Petitioner's motion for summary judgment is granted in part and the petition is granted as discussed below. The government's motions to dismiss are denied.


Petitioner, a native and citizen of Poland, came to the United States as a refugee in 1984. His status was changed retroactively to Lawful Permanent Resident (LPR). Between November 22, 1995 and July 25, 1996, petitioner pled guilty to 17 felonies including larceny, burglary, tampering with a motor vehicle and trespass. Petitioner completed serving his sentences on April 23, 1999, when the INS took him into custody.

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted. Pub.L. No. 104-132, 110 Stat. 1214. On November 25, 1996, the INS issued an Order to Show Cause charging petitioner with deportability as an aggravated felon based on his convictions for second degree larceny on November 22, 1995, and February 14, 1996. Immigration proceedings were formally initiated on January 29, 1997. At a hearing on September 23, 1997, petitioner admitted his alienage and conceded his deportability on the convictions. He attempted to apply for relief from deportation under former INA § 212(c), which gives the Attorney General discretion to allow criminal aliens who resided in the U.S. for at least seven years and were sentenced to five years or less to remain in the country. The IJ ordered petitioner deported to Poland and found him ineligible for relief under § 212 as amended by § 440 of AEDPA. The Board of Immigration Appeals (BIA) dismissed petitioner's appeal on the grounds that § 440 applied to petitioner, citing the Attorney General's decision in Matter of Soriano. Interim Decision 3289, 1996 WL 426888 (BIA 1996, A.G.1997).

The Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was passed on September 30, 1996. Its transitional rules apply to deportation proceedings that commence between October 30, 1996, and April 1, 1997, when its permanent rules took effect. IIRIRA § 309(c)(1), (4), 110 Stat. 3009-625, -626. IIRIRA § 303, codified at INA § 236(c), 8 U.S.C. § 1226(c), mandates detention of aliens, including petitioner.

Petitioner initiated this suit by seeking a temporary restraining order ex parte, which was granted. Following a hearing, the parties agreed to stay deportation pending the conclusion of these proceedings. Because of uncertainty in the law, petitioner also filed a petition for review with the Court of Appeals. Petitioner remains

Page 179

in administrative custody of the INS.


A. Jurisdiction

The government concedes jurisdiction to consider petitioner's challenges to AEDPA § 440(d), but argues that there is no jurisdiction to stay deportation. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("AAADC"). The government does not explain why AAADC permits review of petitioner's claims but prohibits a stay of deportation. Jurisdiction over petitioner's claims presupposes authority to stay, as such review would be meaningless if petitioner were deported in the meantime.

The argument that there is no jurisdiction to challenge the constitutionality of petitioner's detention under INA § 236(c), 8 U.S.C. § 1226(c), is based on the grounds that he is held under INA § 241, 8 U.S.C. § 1231(a). As discussed below, petitioner is detained pursuant to INA § 236(c). The government concedes jurisdiction to review the constitutionality of that statute, as opposed to an administrative decision implementing the statute. 8 U.S.C. § 1226(e) ("No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien of any alien or the grant, revocation, or denial of bond or parole."); see Parra v. Perryman, 172 F.3d 954, 957 (7th Cir.1999). IIRIRA § 306(c)(1), 8 U.S.C. § 1252(g), does not preclude review of the constitutionality of INA § 241 also. AAADC, 525 U.S. at 482-88, 119 S.Ct. at 943-45. Accordingly, there is jurisdiction over all petitioner's claims.

B. Application of AEDPA § 440(d)

The IJ and BIA denied petitioner's application for relief under INA § 212(c), 8 U.S.C. § 1182(c), on the ground that AEDPA § 440(d) restricts the Attorney General's discretion to grant relief to aliens convicted of aggravated felonies.1 Petitioner concedes that he is an alien described in AEDPA § 440(d). He argues that the statute does not apply to him because his conduct and convictions predate passage of AEDPA.

It is well settled that § 440(d) does not apply retroactively to proceedings begun before its effective date. See Henderson v. INS, 157 F.3d 106, 129 (2d Cir.1998), cert. denied sub nom. Navas v. Reno, 526 U.S. 1004, 119 S.Ct. 1141, 143 L.Ed.2d 209 (1999); see also Goncalves v. Reno, 144 F.3d 110, 125 (1st Cir.1998), cert. denied, 526 U.S. 1004, 119 S.Ct. 1140, 143 L.Ed.2d 208 (1999); Sandoval v. Reno, 166 F.3d 225, 234 (3d Cir.1999). "[S]tatutes are not ordinarily afforded retroactive effect unless `Congress has clearly manifested its intent' to have them so applied." Henderson, 157 F.3d at 129 (quoting Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 117 S.Ct. 1871, 1876, 138 L.Ed.2d 135 (1997)). The language of the statute and the legislative history were found to indicate clearly no intention of retroactive effect. Id. at 129-30 (comparison of § 440(d) with other parts of AEDPA which explicitly provide for retroactivity "strongly indicates that Congress did not intend § 440(d) to apply retroactively"). However, Henderson did

Page 180

not consider petitioner's argument here, "that the statute should not apply to primary conduct — i.e., criminal convictions — that occurred prior to April 24, 1996." Id. at 128 n. 28.

The government argues initially that § 440(d) does not have a retroactive effect on petitioner. A determination of retroactivity asks

Whether the new provision attached new legal consequences to events completed before its enactment. The conclusion that a particular rule operates retroactively comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event..... [R]etroactivity is a matter on which judges tend to have sound instincts and familiar notions of fair notice, reasonable reliance and settled expectations offer sound guidance.

Landgraf v. USI Film Products, 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (quotation omitted). An alien, criminal or otherwise, has a strong legal interest in his continued residency. A criminal defendant at risk of deportation must be advised of the potential effect of a guilty plea on his alien status. See Michel v. United States, 507 F.2d 461, 465-66 (2d Cir.1974) (defense counsel must advise about the indirect consequences of a guilty plea, including deportation); Mojica v. Reno, 970 F.Supp. 130, 177 (E.D.N.Y. 1997), aff'd sub nom. Henderson, 157 F.3d at 106. Although discretionary, the long availability of relief under § 212 to criminal aliens such as petitioner creates a legal interest in the opportunity to apply for such relief. See Francis v. INS, 532 F.2d 268, 273 (2d Cir.1976). The threat posed by § 440's consequences to petitioner's prior convictions triggers a presumption against retroactivity, even though the original conduct was "morally reprehensible or illegal" when committed. Landgraf, 511 U.S. at 282-83, 114 S.Ct. 1483; see also Goncalves, 144 F.3d at 128 (application of § 440(d) "takes away a form of relief that, while discretionary, is plainly substantive"); Dunbar v. INS, 64 F.Supp.2d 47, 51-52 (D.Conn.1999) (granting petitions for habeas corpus compelling INS to permit petitioners to apply for § 212 relief); but see LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir.1998) ("It would border on the absurd to argue that these aliens might have decided not to commit drug crimes, or might have resisted conviction more vigorously, had they known that if they were not only imprisoned but also, when their prison term ended, ordered deported, they could not ask for a discretionary waiver of deportation."). The interest at risk permits retroactive application only if clearly indicated in the text. See Landgraf, 511 U.S. at 272, 114 S.Ct. 1483.

The first resort of statutory construction, the language itself, clearly indicates that § 440(d) does not apply to petitioner's convictions. AEDPA contains six provisions which explicitly apply retroactively: §§ 401(f), 421(b), 413(g), 435(b), 440(f), and 441(b). See Mojica, 970 F.Supp. at 172-73; Wallace v. Reno, 24 F.Supp.2d 104, 110-112 (D.Mass.1998). Where Congress drafted the statute with such precision and clearly specified retroactivity for some provisions, the omission of similar language from § 440(d) reflects a lack of retroactive intent here. See Lindh v. Murphy, 521 U.S. 320, 328, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (Congress may have shown heightened concern for clarity with respect to retroactivity in AEDPA in light of recent retroactivity decisions). A pattern...

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