Santos-Gonzalez v. Reno

• Decision Date: 18 April 2000
• Docket Number: No. CV-99-7073 (CPS).,CV-99-7073 (CPS).
• Citation: 93 F.Supp.2d 286
• Parties: Jose Dimas SANTOS-GONZALEZ, Petitioner, v. Janet RENO etc., et alia, Respondents.
• Court: U.S. District Court — Eastern District of New York

93 F.Supp.2d 286

Jose Dimas SANTOS-GONZALEZ, Petitioner, v. Janet RENO etc., et alia, Respondents.

No. CV-99-7073 (CPS).

United States District Court, E.D. New York.

April 18, 2000.

Marguerite D. Cordice-Bayley, Law Offices of Marguerite D. Cordice-Bayley, Jackson Heights, NY, for Petitioner.

Scott Dunn, United States Attorney's Office, Civil Division, Brooklyn, NY, for Respondents.

MEMORANDUM AND ORDER

SIFTON, Senior District Judge.

Petitioner Jose Dimas Santos-Gonzalez filed this habeas corpus petition with this Court on November 1, 1999, requesting a stay of deportation and challenging a decision of the Board of Immigration Appeals finding him ineligible for relief from deportation on humanitarian grounds under § 212(c) of the Immigration and Nationality Act ("INA"). Named as respondents are Janet Reno, Attorney General of the United States; Doris Meissner, Commissioner of the Immigration and Naturalization Service ("INS"); Edward McElroy, New York City District Director of the INS; John Doe District Director of the INS; and the INS and Department of Justice. Petitioner sought a temporary restraining order and preliminary injunction enjoining the government from deporting him pending a hearing on the merits of his petition, and an order to show cause why the petition should not be granted. The government has agreed to stay deportation pending a resolution of the petition on its merits.

For the reasons set forth below, the petition is granted, and the matter is remanded to the INS for proceedings consistent with this decision.

BACKGROUND

The following facts are drawn from the verified petition and supporting affirmation, the bail application and supporting affirmation, and the declaration of Assistant United States Attorney Scott Dunn. Disputes are noted.

Petitioner entered the United States as a legal permanent resident in 1974 and has lived here ever since. He was born in the Dominican Republic on September 5, 1953, was admitted to the United States as a twenty-one year old student, and is now forty-six. Petitioner's wife, who is a Dominican citizen, resides in the United States and is currently undergoing chemotherapy for breast cancer. Petitioner has no children and has three siblings living in the United States and two siblings in the Dominican Republic. Petitioner has worked and resided in Queens until his deportation detention, except when incarcerated.

Petitioner has been found deportable by respondents on the basis of one conviction in December 1986 for criminal sale of a controlled substance (heroin) in the fifth degree. Petitioner was also convicted in 1980 for criminal possession of a weapon.¹ He was sentenced to two to four years in prison and was released on or about December 7, 1988. Respondents have declined to consider his case for discretionary waiver of deportation pursuant to § 212(c) because of provisions of the Anti-terrorism 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. Congress passed both of the acts after petitioner committed the offense for which the INS seeks to deport him. Petitioner is currently subject to a final order of deportation and is in INS detention in Batavia, New York.

Petitioner was stopped by the police on June 19, 1998, on suspicion of entering the subway without paying.² The case was adjourned in contemplation of dismissal. However, petitioner was prosecuted as an absconder for violation of his parole imposed following his 1986 conviction.³ He was incarcerated on the parole violation until February 1999 and, while in custody, underwent treatment for substance abuse. Since his release by the state, he has been in INS custody. While in INS custody, he has been involved in a physical altercation involving a number of detainees.

On April 29, 1999, an immigration judge ordered petitioner removed⁴ and deported to the Dominican Republic. The judge rejected petitioner's request for a hearing to obtain a discretionary waiver of deportation pursuant to § 212(c) of the Immigration and Naturalization Act, because that provision had been repealed before his application. The Board of Immigration Appeals ("BIA") affirmed the order of deportation against petitioner on October 8, 1999.

Section 212(c) of the INA entitled long-time legal permanent residents accused of crimes triggering deportation to a discretionary hearing for a waiver of deportation or exclusion. See 8 U.S.C. § 1182(c) (1994) (repealed 1996); Francis v. INS, 532 F.2d 268 (2d Cir.1976). The immigration judge's decision to grant the waiver depended on a weighing of many factors, including family ties with the United States, residence of long duration in this country, evidence of hardship to the individual and family if deportation were to occur, a history of employment, and proof of rehabilitation. See Mojica v. Reno, 970 F.Supp. 130, 137 (E.D.N.Y.1997). Section 212(c) created an entitlement only to a hearing and the exercise of discretion, not to immunity from deportation. See id.

Petitioner filed the instant petition with this Court on November 1, 1999. Petitioner was represented by counsel at all stages of the administrative proceedings and in the current action. On December 23, 1999, this Court denied petitioner's application to be released on bail pending the resolution of his petition.

DISCUSSION

In 1996, Congress passed two laws that substantially revised immigration law and policy. Between them, the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") significantly increased the number of crimes for which an alien must be deported, see 8 U.S.C. § 1101(a)(43), stripped many lawful permanent resident aliens of the right to discretionary and humanitarian relief, see id. § 1229b(a), and attempted to strip the federal courts of any meaningful review of actions taken by the Executive in excluding or removing aliens from this country, see id. § 1252. AEDPA was signed into law on April 24, 1996, and IIRIRA was enacted on September 30, 1996.

IIRIRA provided transitional rules that were effective for all INS proceedings initiated between October 30, 1996, and May 31, 1997. See IIRIRA § 309, 110 Stat. at 3009-625; Maria v. McElroy, 68 F.Supp.2d 206, 214 (E.D.N.Y.1999). For removal proceedings begun after April 1, 1997, however, the permanent rules of IIRIRA are in effect. See id. Generally, removal proceedings are deemed commenced upon the issuance of the notice to appear, also called the order to show cause. See Pena-Rosario v. Reno, 83 F.Supp.2d 349, 362-63 (E.D.N.Y.2000); Dunbar v. INS, 64 F.Supp.2d 47, 52 (D.Conn.1999). In this case, petitioner's notice to appear is dated August 10, 1998, and the permanent rules of IIRIRA therefore apply.⁵

Petitioner raises two claims in support of his petition. First, he argues that, as both a constitutional matter and a matter of statutory construction, IIRIRA did not retroactively eliminate the right to a fairness hearing under § 212(c) of the INA. Second, petitioner argues that he is being denied equal protection because § 212(c), as amended, irrationally discriminates between deportable and excludable aliens.⁶ Petitioner seeks an order (1) staying his deportation during the pendency of this action; (2) declaring that amendments made to § 212(c) by IIRIRA may not be applied retroactively to petitioner; (3) declaring § 212(c) as amended unconstitutional as applied in this case; (4) directing respondents to vacate his order of deportation; and (5) remanding the case to respondents with an order to conduct a hearing on the merits of the § 212(c) application.

Respondents argue that the petition should be dismissed because (1) the Court lacks subject matter jurisdiction and (2) the Court has no personal jurisdiction over the respondents. Respondents also oppose the petition on its merits, arguing that IIRIRA is explicitly retroactive and bars a discretionary cancellation of removal for petitioner.

Subject Matter Jurisdiction

Of necessity, the first question this Court must address is whether it has subject matter jurisdiction under 28 U.S.C. § 2241 to consider the instant petition. Respondents argue that this Court has no subject matter jurisdiction because IIRIRA repealed § 2241 jurisdiction in the district courts for challenges to INS actions.

The Second Circuit, however, has already rejected respondents' arguments and clearly held that the jurisdiction-stripping provisions of AEDPA and IIRIRA did not affect district courts' 28 U.S.C. § 2241 habeas jurisdiction over claims by removable aliens. See Henderson v. INS, 157 F.3d 106, 119 (2d Cir.1998); Jean-Baptiste v. Reno, 144 F.3d 212, 219-20 (2d Cir.1998); Hincapie-Nieto v. I.N.S., 92 F.3d 27, 31 (2d Cir.1996); Pena-Rosario, 83 F.Supp.2d 349, 360-61. Two canons of statutory construction mandate this interpretation of the 1996 acts. First, repeals by implication of jurisdictional statutes, and particularly of habeas statutes, are disfavored. See Henderson, 157 F.3d at 119. Indeed, courts have adopted a clear statement requirement for the modification of habeas jurisdiction, so that "in the absence of language affirmatively and clearly eliminating habeas review, we presume Congress did not aim to bar federal courts' habeas jurisdiction pursuant to § 2241." Jean-Baptiste, 144 F.3d at 219; see also Felker v. Turpin, 518 U.S. 651, 661, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). Second, this interpretation comports with the canon to avoid constitutional questions. See, e.g., Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Specifically, district court retention of § 2241 jurisdiction in these cases avoids the "profound constitutional questions" that would be presented under the Suspension Clause, Article III, the Due Process Clause, and the...