Spina v. Department of Homeland Sec.

Decision Date28 November 2006
Docket NumberDocket No. 04-3177-PR.
Citation470 F.3d 116
PartiesGiuseppe SPINA, Petitioner-Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Thomas I. Sheridan III, (Melissa C. Welch, on the brief) Hanly, Conroy, Bierstein & Sheridan LLP, New York, NY, for Petitioner-Appellant.

William J. Nardini, Assistant United States Attorney, (Sandra S. Glover, Assistant United States Attorney, and Davon Collins, Law Student Intern, on the brief), for Kevin J. O'Connor, United States Attorney for the District of Connecticut, Hartford, CT, for Respondent-Appellee.

Before OAKES, STRAUB, and RAGGI, Circuit Judges.

RAGGI, Circuit Judge.

Petitioner Giuseppe Spina appeals from a final judgment of the United States District Court for the District of Connecticut (Robert N. Chatigny, Judge), entered on May 25, 2004, which dismissed his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. See Spina v. Dist. Dir.—Office of Homeland Sec., 2004 WL 1151587 (D.Conn. May 21, 2004), 2004 U.S. Dist. LEXIS 9189, at *2. Spina, a citizen of Italy and for more than thirty years a lawful permanent resident of the United States, filed a habeas petition challenging a deportation order of the Immigration and Naturalization Service ("INS"),1 which order was based on Spina's 1994 Connecticut conviction for first-degree manslaughter in connection with the stabbing death of his estranged wife. Spina charged the INS with erroneously deeming him ineligible for discretionary relief from deportation pursuant to § 212(c) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1182(c) (1994), on the ground that he had served a term of imprisonment of at least five years. Although the district court rejected this argument, Spina here pursues two challenges to the calculation of his served time of imprisonment, both of which must succeed for him to secure relief from this court. Spina submits (1) that time he spent in pre-conviction detention was not "served" as part of the "term of imprisonment" imposed upon conviction and, therefore, cannot count toward accrual of § 212(c)'s five-year bar; and (2) that, pursuant to Edwards v. INS, 393 F.3d 299 (2d Cir.2004), time he spent in post-conviction custody also cannot count toward accrual of the § 212(c) bar, at least for the period Spina administratively challenged the INS's initial erroneous retroactive application to his case of the amendment to § 212(c) effected by § 440(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996).

In accordance with the REAL ID Act of 2005, Pub.L. No. 109-13, § 106(a), 119 Stat. 231, 310 (codified at 8 U.S.C. § 1252(a)(5)), we convert Spina's appeal to a petition for review by this court of the challenged INS rulings. Pursuant to that review, we resolve Spina's first argument against him on the merits, holding that the time he spent in pre-conviction detention between May 31, 1992, and March 18, 1994, may be calculated together with the time he spent in post-conviction detention between March 18, 1994, and September 27, 1997, the date of the original Immigration Judge ("IJ") ruling, to support the conclusion that he was then ineligible for § 212(c) relief because he had "served . . . a term of imprisonment of at least five years." 8 U.S.C. § 1182(c) (1994). Accordingly, we deny his petition for review on that ground without addressing his second point.

I. Background
A. Spina's Connecticut Conviction and Incarceration for First-Degree Manslaughter

In 1967, Giuseppe Spina, then a seventeen-year-old native of Italy, was admitted to the United States as a lawful permanent resident. Some twenty-five years later, on May 31, 1992, Spina went to the home of his estranged wife in Rocky Hill, Connecticut, and stabbed her to death with a kitchen knife. Arrested at the scene of the crime, Spina was initially charged in Connecticut state court with one count of second-degree murder. Because he could not meet the $750,000 bail set for his release, Spina remained in detention through the conclusion of his criminal case.

On February 1, 1994, Spina disposed of the murder charge against him by entering a plea of nolo contendere to the lesser crime of first-degree manslaughter. See Conn. Gen.Stat. § 53a-55(a)(3). On March 18, 1994, the state court entered a judgment of conviction sentencing Spina to a twenty-year term of incarceration, whereupon he was transferred to the custody of the state penal system. As of the date of conviction, Spina had spent slightly less than twenty-two months in detention. Pursuant to state law, on March 29, 1994, prison authorities automatically credited Spina with this detention period, thereby reducing by 655 days the time he would have to remain in prison on the imposed twenty-year sentence. See Conn. Gen. Stat. § 18-98d(a)(1).2

B. Spina's Deportation Proceedings

Federal immigration law authorizes the removal from the United States of any alien who has been convicted of an "aggravated felony." 8 U.S.C. § 1227(a)(2)(A)(iii). Pursuant to this statute, on June 2, 1995, the INS issued Spina an order to show cause why he should not be deported in light of his conviction for first-degree manslaughter.3 The ensuing deportation proceedings were both lengthy and complex. We summarize them briefly to provide some background to this appeal.

1. The Initial IJ Ruling

Spina initially appeared before an IJ on the order to show cause on July 16, 1996. Following two unopposed adjournments, his removal hearing was held on September 23, 1997. At that hearing, Spina did not challenge the fact of his manslaughter conviction or its qualification as an aggravated felony; instead, he applied for discretionary relief from removal pursuant to INA § 212(c).

Prior to the 1996 enactment of AEDPA and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (codified in scattered sections of 8 U.S.C.), section 212(c) of the INA had granted the Attorney General discretionary power to waive the deportation of certain lawful permanent residents, even those convicted of aggravated felonies, provided they had not yet served a term of imprisonment of at least five years on such a felony conviction.4 See, e.g., Edwards v. INS, 393 F.3d at 302 (noting that, for many aliens, § 212(c) "constituted the only possible way of securing relief from deportation"); Bedoya-Valencia v. INS, 6 F.3d 891, 895 (2d Cir.1993). By order dated September 23, 1997, the IJ ruled that Spina was ineligible for § 212(c) relief in light of AEDPA § 440(d), which amended § 212(c) to make discretionary relief from removal unavailable to persons convicted of certain offenses, including aggravated felonies.5 Accordingly, the IJ ordered Spina deported to Italy.

2. Proceedings Before the BIA

On October 15, 1997, Spina appealed his deportation order to the Board of Immigration Appeals ("BIA"), challenging the retroactive application of AEDPA § 440(d) to his case. On July 7, 1998, the BIA returned Spina's case to the IJ, requesting a decision specifically addressing AEDPA's retroactive applicability. Before the IJ acted on the remand, this court resolved the issue, holding in Henderson v. INS, 157 F.3d 106, 130 (2d Cir.1998), that AEDPA § 440(d) was not intended to apply retroactively to aliens, like Spina, whose deportation proceedings commenced before AEDPA went into effect on April 24, 1996. See also INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that, despite AEDPA and IIRIRA, "§ 212(c) relief remains available for aliens . . . whose convictions were obtained through plea agreements and who . . . would have been eligible for [such] relief at the time of their plea under the law then in effect"). In light of Henderson, on March 7, 1999, the IJ reopened Spina's deportation proceeding "for a determination of whether or not 212(c) relief should be available to him." In re Giuseppe Spina, A14 777 679 (Immig. Ct. Boston Mar. 7, 1999). On February 10, 2000, a newly assigned IJ concluded that the BIA remand order did not, in fact, afford jurisdiction for an IJ to reopen Spina's deportation proceeding; accordingly the IJ certified Spina's case to the BIA for it to reconsider his § 212(c) challenge in light of Henderson.

The BIA accepted the certification and, relying on Henderson, concluded that the original IJ had erred in retroactively applying AEDPA to Spina's already pending deportation proceeding to hold him ineligible for § 212(c) relief. Nevertheless, the BIA declined to afford Spina any relief on appeal because, at the time of its May 31, 2000 hearing, he had "now served more than 5 years in prison" on an aggravated felony conviction, a circumstance that disqualified him from § 212(c) relief even before the enactment of AEDPA. In re Giuseppe Spina, A14 777 679 (BIA May 31, 2000). Spina subsequently filed a motion to reopen, which was also denied by the BIA. In re Giuseppe Spina, A14 777 679 (BIA Apr. 21, 2004).

C. Spina's Habeas Corpus Petition

Spina challenged the BIA decision by petitioning the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In that petition, Spina did not dispute that § 212(c) relief was, in fact, unavailable to an alien who had served five years in prison for an aggravated felony. Rather, he argued that the BIA erred as a matter of law in dismissing his appeal because, at the time the INS order to show cause was issued in 1995, he had not yet served five years' imprisonment. The district court rejected this argument, holding that the relevant date for calculating the five-year bar was May 31, 2000, when "the BIA affirmed the immigration judge's decision .... [At that time, Spina] had served more than five years in prison." Spina v. Dist. Dir.—Office of Homeland Sec., 2004...

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