Swaby v. Ashcroft

• Decision Date: 03 February 2004
• Docket Number: Docket No. 03-2298(CON).,Docket No. 02-2068(L).
• Citation: 357 F.3d 156
• Parties: Roy SWABY, Petitioner-Appellant, v. John ASHCROFT, United States Attorney General, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

357 F.3d 156

Roy SWABY, Petitioner-Appellant, v. John ASHCROFT, United States Attorney General, Respondent-Appellee.

Docket No. 02-2068(L).

Docket No. 03-2298(CON).

United States Court of Appeals, Second Circuit.

Argued: December 15, 2003.

Decided: February 3, 2004.

Mitchell Cohen, Hallandale Beach, FL, for Appellant.

Kristen Chapman, Assistant United States Attorney (Varuni Nelson, Assistant United States Attorney, of counsel; Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, on the brief), United States Attorney's Office for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before: WALKER, Chief Judge, KEARSE and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

Petitioner Roy Swaby appeals from an order of the United States District Court for the Eastern District of New York (Allyne R. Ross, Judge), dated April 22, 2003, denying his petition for a writ of habeas corpus. After this Court denied his motion for a stay of removal pending appeal, Swaby was deported on or about August 25, 2003 as an alien convicted of an aggravated felony, based on a 1990 conviction by a jury in New York for second-degree burglary and unlawful possession of marijuana.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, § 304(b), repealed § 212(c) of the Immigration and Nationality Act ("INA"),¹ which had authorized the Attorney General to waive deportation in certain circumstances. In INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Supreme Court held that IIRIRA's repeal of INA § 212(c) would have an impermissibly retroactive effect on aliens who had entered into plea agreements prior to the effective date of IIRIRA that would preserve their eligibility for § 212(c) relief, because such aliens had likely relied on the availability of § 212(c) relief in pleading guilty. Id. at 325, 121 S.Ct. 2271. In Rankine v. Reno, 319 F.3d 93 (2d Cir.), cert. denied, 540 U.S. 910, 124 S.Ct. 287, 157 L.Ed.2d 199 (2003), we held that the repeal of § 212(c) relief does not have an impermissibly retroactive effect when applied to aliens who were convicted after a trial, rather than pursuant to a plea, prior to the effective date of IIRIRA. Id. at 102. In the instant case, the District Court held, relying upon Rankine, that the repeal of § 212(c) applied to petitioner, who was convicted after a trial and prior to the effective date of IIRIRA, notwithstanding petitioner's assertion that he relied on the availability of § 212(c) relief in rejecting a plea offer and proceeding to trial. See Swaby v. Ashcroft, 296 F.Supp.2d 279 (E.D.N.Y. 2003). We affirm.

Background

Petitioner is a native of Jamaica and a citizen of the United Kingdom and its colonies, and was, until recently, a lawful permanent resident of the United States, having entered in 1970. In 1990, defendant was convicted of second-degree burglary and unlawful possession of marijuana, in violation of Sections 140.25 and 221.05 of the New York Penal Code. He was sentenced to an indeterminate term of three to nine years' imprisonment, and served fewer than four years. On August 11, 1999, the Immigration and Naturalization Service² issued a Notice to Appear, charging him with being removable from the United States as an alien convicted of an aggravated felony, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).³ On April 3, 2000, an immigration judge found petitioner removable as charged, and issued an order of removal. The immigration judge found petitioner ineligible for a waiver of deportation hearing pursuant to former § 212(c) of the INA, on the ground that § 212(c) had been repealed by the enactment of IIRIRA, effective April 1, 1997.⁴ The Board of Immigration Appeals dismissed petitioner's appeal on October 26, 2000. On November 17, 2000, petitioner filed a habeas petition, pursuant to 28 U.S.C. § 2241,⁵ in the District Court. In an order dated April 22, 2003, the District Court denied the petition.⁶ Petitioner filed a Notice of Appeal on May 5, 2003. On or about August 25, 2003, petitioner was deported.

Petitioner's claim on appeal involves his eligibility to seek a discretionary waiver of removal pursuant to former § 212(c) of the INA. We have described the history of § 212(c) relief in St. Cyr v. INS, 229 F.3d 406, 410-12 (2d Cir.2000), aff'd, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Section 212(c), formerly codified at 8 U.S.C. § 1182(c), gave the Attorney General discretion to waive deportation under certain conditions for lawfully admitted permanent residents. See St. Cyr, 229 F.3d at 410. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, § 440(d) of which limited eligibility for relief under § 212(c), and later that year Congress enacted IIRIRA, § 304(b) of which repealed § 212(c) altogether. See St. Cyr, 229 F.3d at 411. IIRIRA replaced § 212(c) relief with a form of relief called "cancellation of removal," which allows the Attorney General to cancel removal proceedings for certain resident aliens, excluding those convicted of an aggravated felony. IIRIRA § 304(b); see INA § 240A(a), 8 U.S.C. § 1229b(a).⁷

In INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), which upheld our decision in St. Cyr v. INS, 229 F.3d 406 (2d Cir.2000), the Supreme Court held that Congress's repeal of § 212(c) did not apply to aliens who had entered into plea agreements prior to the repeal, where the agreements served to preserve the aliens' eligibility for § 212(c) relief. The Court found that there was a "significant likelihood" that eligible aliens would be granted § 212(c) relief prior to IIRIRA, and that they "almost certainly relied upon that likelihood in deciding whether to forgo their right to a trial" by agreeing to sentences that would preserve their eligibility for § 212(c) relief. St. Cyr, 533 U.S. at 325, 121 S.Ct. 2271. The Court determined that "it surely would be contrary to `familiar considerations of fair notice, reasonable reliance, and settled expectations,' to hold that IIRIRA's subsequent restrictions deprive them of any possibility of such relief." Id. at 323-24, 121 S.Ct. 2271 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)) (internal citation omitted).

We recently held in Rankine, 319 F.3d at 102, that the repeal of § 212(c) relief does not have an impermissibly retroactive effect when applied to aliens who were convicted at trial rather than pursuant to a plea. Id. at 102. Applying Rankine to this case, the District Court held that petitioner was not entitled to seek § 212(c) relief. The District Court rejected petitioner's argument, which he reiterates on appeal, that Rankine does not apply to his case because he, unlike the aliens in Rankine, "detrimentally relied" on the availability of § 212(c) in choosing to reject a plea deal and proceed to trial.

Discussion

I. Mootness

We must first determine whether petitioner, who has already been deported, presents a live case or controversy. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). In order to satisfy the case-or-controversy requirement, petitioner "`must have suffered, or be threatened with, an actual injury traceable to the [respondent] and likely to be redressed by a favorable judicial decision.'" Id. (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). Petitioner asserts an actual injury — a bar to reentering the United States — that has a sufficient likelihood of being redressed by the relief petitioner seeks from this Court. His appeal is therefore not moot.⁸

Where a defendant has been convicted of a crime, but is no longer incarcerated, the defendant must show some "collateral consequence" of the conviction, meaning "some concrete and continuing injury other than the now-ended incarceration or parole," Spencer, 523 U.S. at 7, 118 S.Ct. 978, to establish a live case or controversy. Here, petitioner is no longer imprisoned, but he faces a lifetime bar from reentering the United States as a result of having been ordered removed after an aggravated felony conviction. See 8 U.S.C. § 1182(a)(9)(A)(ii). He thereby suffers a "collateral consequence." See, e.g., Perez v. Greiner, 296 F.3d 123, 126 (2d Cir.2002) (stating in dicta that a permanent bar to reentry that could be affected by the pending case "clearly would suffice to prevent [appellant's] habeas petition from being mooted").

The government argues that petitioner's claim is nonetheless moot because, even if this Court were to order the Attorney General to give petitioner a hearing on § 212(c) relief, and petitioner were to receive § 212(c) relief, petitioner would still be statutorily barred from reentry. The government contends, in other words, that petitioner's injury is not likely to be redressed by a favorable ruling from this Court. Specifically, the government claims that petitioner would still be inadmissible under 8 U.S.C. § 1182(a)(9)(A)(ii),⁹ for having been ordered removed after an aggravated felony conviction.

This provision, however, would not bar petitioner's reentry if we were to, as petitioner requests, grant a writ of habeas corpus and vacate his order of removal. Cf., e.g., Dickson v. Ashcroft, 346 F.3d 44, 55 (2d Cir.2003) (granting a petition for review of a BIA decision and vacating the order of removal). Furthermore, if petitioner had received such a § 212(c) hearing and had been granted § 212(c) relief, he would not have been ordered removed in the first place. Other courts to address the issue have held that an alien seeking § 212(c) relief presents a live case or controversy even where the alien has been deported and now faces a statutory bar to reentry. See Leitao v. Reno, 311 F.3d 453, 456 (1st Cir.2002) (holding that "the bar on readmission of a...