Smith v. Ashcroft

• Decision Date: 01 July 2002
• Docket Number: No. 01-2004.,01-2004.
• Citation: 295 F.3d 425
• Parties: Wayne A. SMITH, A34-470-066, Petitioner, v. John ASHCROFT, Attorney General of the United States; Kevin Rooney, acting Commissioner of the Immigration and Naturalization Service; Louis D. Crocetti, Jr., as Baltimore, Maryland District Director of the Immigration and Naturalization Service; U.S. Immigration & Naturalization Service, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

295 F.3d 425

Wayne A. SMITH, A34-470-066, Petitioner, v. John ASHCROFT, Attorney General of the United States; Kevin Rooney, acting Commissioner of the Immigration and Naturalization Service; Louis D. Crocetti, Jr., as Baltimore, Maryland District Director of the Immigration and Naturalization Service; U.S. Immigration & Naturalization Service, Respondents.

No. 01-2004.

United States Court of Appeals, Fourth Circuit.

Argued May 6, 2002.

Decided July 1, 2002.

ARGUED: Raj Sanjeet Singh, Raj S. Singh C.P.A., P.C., Rockville, Maryland, for Petitioner. Papu Sandhu, Senior Litigation, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for Respondents. ON BRIEF: Robert D. McCallum, Jr., Assistant Attorney General, Emily Anne Radford, Assistant Director, Office of Immigration Litigation, Civil Division United States Department of Justice, Washington, DC, for Respondents.

Before NIEMEYER and GREGORY, Circuit Judges, and C. Arlen BEAM, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Affirmed by published opinion. Senior Judge BEAM wrote the opinion, in which Judge NIEMEYER and Judge GREGORY joined.

OPINION

BEAM, Senior Circuit Judge.

Wayne Ancil Smith, a citizen of Trinidad, contends that he was denied procedural due process in violation of the Fifth Amendment in the course of his deportation proceedings in 1998. We disagree and affirm the district court's dismissal of his 28 U.S.C. § 2241 habeas corpus petition.

I.

Smith entered the United States in 1967 as the dependent of a diplomatic visa holder, and became a lawful permanent resident in 1974. This was his status in March 1992 when he entered a plea of guilty to felony drug charges. Based on that conviction, in March 1996, pursuant to the Immigration and Naturalization Act, 8 U.S.C. § 1101 et seq. (the Act), the INS issued an order to show cause why he should not be deported as an alien convicted of a law relating to a controlled substance and as an alien convicted of an aggravated felony.

In the administrative deportation proceedings, Smith applied for a waiver of deportation under the former section 212(c) of the Act, 8 U.S.C. § 1182(c). This section granted the Attorney General broad discretion to admit aliens who would otherwise be excludable, and had been interpreted by the Board of Immigration Appeals (BIA) as authorizing any permanent resident alien with seven consecutive years of lawful domicile to apply for a discretionary waiver of deportation. See INS v. St. Cyr, 533 U.S. 289, 294-95, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). The immigration judge denied the request, reasoning that amendments to the Act pursuant to the newly enacted Antiterrorism and Effective Death Penalty Act (AEDPA) precluded section 212(c) waivers for drug offenders. The immigration judge ordered Smith deported in April 1997.

Smith timely appealed the immigration judge's ruling to the BIA, which denied the appeal on August 24, 1998. Like the immigration judge, the BIA also concluded that application of AEDPA's amendments to section 212(c) precluded Smith from presenting his case for or obtaining, on the merits, a discretionary waiver. On November 9, 1998, Smith challenged the BIA's adjudication by filing a petition for writ of habeas corpus in the United States District Court for the District of Maryland. The district court ruled that it did not have jurisdiction over an "appeal" of a BIA adjudication and transferred the case to this Circuit pursuant to 28 U.S.C. § 1631. This court denied a stay of deportation and granted the government's motion to dismiss for lack of jurisdiction. Smith was deported on December 7, 1998.

Smith illegally reentered the United States through Detroit in January 1999, and returned to his home in Maryland. He remained there undiscovered until he was pulled over for a traffic stop a few years later. The government immediately moved to reinstate the deportation order under 8 U.S.C. § 1231(a)(5), and Smith was ordered removed without a hearing on March 16, 2001. On July 9, 2001, Smith challenged this ruling by filing a habeas petition with the district court. The district court dismissed the petition without elaboration, but stayed removal for sixty days. On October 3, 2001, this court denied Smith's motion for stay of removal and Smith was deported to Trinidad on December 13, 2001. Smith has timely appealed the dismissal of the habeas petition.

II.

We first address the issue of jurisdiction. The government argues that we have no jurisdiction because Smith is not currently "in custody," but instead has been deported and is out of the country. However, Smith needed only to be "in custody" at the time the petition was filed to avoid a jurisdictional challenge based on the "in custody" requirements of the habeas statute. Chong v. INS, 264 F.3d 378, 382-83 (3d Cir.2001) (citing Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968)). In Carafas, the Supreme Court held that where the petitioner was in custody at the time the petition was filed, his release from prison before the petition for certiorari was filed did not moot the case because petitioner could still suffer "serious disabilities because of the law's complexities and not because of his fault, if his claim that he has been illegally convicted is meritorious." Carafas, 391 U, 88 S.Ct. 1556.S. at 239; cf. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (petitioner who was incarcerated at the time the petition was filed satisfies "in custody" requirement of 28 U.S.C. § 2254).

Smith was in custody at the time the petition was filed, and though Smith is no longer in the United States, he is unmistakably affected by the legal implications of our decision. If he prevails, there is a possibility he can beneficially unravel his untoward immigration status. Thus, because Smith was in custody at the time he filed the petition, we have not lost jurisdiction over this appeal.

In St. Cyr, prior to ruling on whether AEDPA retroactively applied to bar discretionary section 212(c) relief, the Supreme Court addressed the initial question of habeas jurisdiction. The government had argued that the jurisdiction-stripping provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) left no judicial forum available. The Court reasoned that because Congress did not make a plain statement revoking habeas jurisdiction and because there was no other available forum to adjudicate the purely legal question at issue, habeas jurisdiction was appropriate in the district court. 533 U.S. at 314, 121 S.Ct. 2271. The Court also determined that construing the IIRIRA provisions to preclude court review of a "pure question of law" would lead to "substantial constitutional questions." Id. at 300, 121 S.Ct. 2271. Therefore, habeas jurisdiction was made available to the petitioner. Id. at 314, 121 S.Ct. 2271.

Although this case is in a somewhat different procedural posture than St. Cyr, its principles are applicable here. As in St. Cyr, the Act bars direct judicial consideration of Smith's claim. Smith contends that his Fifth Amendment right to due process was violated by the 1998 deportation proceedings because he was not given court review of the BIA ruling that he was not entitled to discretionary relief. The Act currently prohibits direct judicial review of this claim because it implicates the validity of a prior order of removal. The Act, 8 U.S.C. § 1231(a)(5), provides in pertinent part: "[i]f ... an alien has reentered... after having been removed ... the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed."¹ This section precludes direct, non-habeas judicial review of any irregularities associated with the 1998 deportation order. Thus, if we do not find habeas jurisdiction, Smith, like the petitioner in St. Cyr, is left without an available forum for adjudication of this purely legal question. To construe the Act to preclude all review of this claim would raise constitutional concerns similar to those expressed by the St. Cyr Court.

The government argues that Smith's claim is distinguishable from St. Cyr because Smith was afforded a full opportunity to litigate this claim in the prior proceeding. However, that is not quite correct. As the government admits in its brief, the procedure for appealing the August 1998 BIA decision was not entirely clear at the time. Smith filed a petition for habeas corpus with the district court, which the district court construed as a petition for direct review and transferred to this court. This court dismissed for lack of jurisdiction, likely because the IIRIRA, which had become effective in April 1997, precluded judicial review for denials of discretionary relief and for aliens removable because they have committed a criminal offense. See 8 U.S.C. § 1252(a)(2)(B) & (C).

Subsequently, this court held in Bowrin v. INS, 194 F.3d 483, 489 (4th Cir.1999) (per curiam), that the district court had habeas juristo review questions of law relating to the administrative denial of 212(c) relief. Obviously, then, Smith's petition for habeas consideration, filed prior to Bowrin in 1998, simply fell between the judicial cracks. Thus, we disagree with the government's argument that St. Cyr's jurisdictional ruling is distinguishable from this case. Accordingly, the district court had habeas jurisdiction over Smith's claim.²

Smith argues that the Due Process Clause of the Fifth Amendment was violated in 1998 by the lack of meaningful review of the immigration judge's refusal to grant him section 212(c) relief and suspend deportation. In order to advance a due process claim, Smith must first establish that he had a property or liberty interest at stake. Stewart v. Bailey, 7 F.3d 384, 392 (4th Cir.1993); Jamil v. Secretary, Dep't of Defense, 910 F.2d 1203,...