Swaby v. Ashcroft
| Decision Date | 22 April 2003 |
| Docket Number | No. 00-CV-6892(ARR).,00-CV-6892(ARR). |
| Citation | 296 F.Supp.2d 279 |
| Parties | Roy SWABY, Petitioner, v. John ASHCROFT, U.S. Attorney General, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Roy Swaby, pro se, and Mitchell Cohen, Law Offices of Mitchell Cohen, Esq., Hallandale Beach, FL, for Petitioner.
Kristen Ann Chapman, US Attorney's Office, Scott Dunn, United States Attorney's Office, Brooklyn, NY, for Respondent.
Petitioner, Roy Swaby, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, requesting that the court remand his case for a hearing to consider his eligibility for a discretionary waiver of deportation under former § 212(c) of the Immigration Nationality Act ("INA"), 8 U.S.C. § 1182(c) (repealed 1996). For the reasons discussed below, his petition is denied.
Mr. Swaby is a native of Jamaica, a citizen of the United Kingdom and its colonies, and a lawful permanent resident of the United States. After a 1985 conviction for driving while intoxicated and a 1986 conviction for criminal trespass in the third degree, petitioner, upon a jury verdict, was convicted on July 11, 1990, of burglary in the second degree and unlawful possession of marijuana, in violation of §§ 140.25 and 221.05 of the New York State Penal Code. Petitioner was sentenced to between three and nine years for the burglary and possession convictions. In August 1999, petitioner was detained in Nassau County for a parole violation. His status was brought to the attention of the Immigration and Naturalization Service (INS), which issued a Notice of Removal charging him with being removable from the United States as an alien convicted of an aggravated felony, pursuant to 8 U.S.C. § 1227(c)(2)(A)(iii). On April 3, 2000, the Immigration Judge before whom petitioner appeared found petitioner removable from the United States and issued a final order of removal. In issuing this order of removal, the immigration judge found that petitioner was ineligible for a waiver of deportation hearing under § 212(c) of the INA because the 1996 enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") repealed § 212(c) waivers. Petitioner's timely appeal was dismissed by the Board of Immigration Appeals on October 26, 2000. On November 17, 2000, Mr. Swaby, proceeding pro se, filed the instant habeas petition.
By decision dated January 7, 2002, the court denied the petition on the ground that § 212(c) relief was not available to aliens whose pre-1996 convictions, like petitioner's, resulted from a jury trial instead of a guilty plea. Petitioner subsequently obtained counsel, who moved for reconsideration pursuant to Fed.R.Civ.P. 60(b). The basis for petitioner's motion was that although he did not plead guilty to a deportable offense—thus rendering the Supreme Court's holding in I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) unavailable to him—the 1996 repeal of discretionary relief nevertheless should not apply to him because he detrimentally relied on the availability of such relief when he rejected a plea offer from the state and proceeded to trial.
The court granted the motion and permitted petitioner to supplement the record in support of his new contention. The court stayed consideration of the merits of petitioner's claim pending the Second Circuit's resolution of consolidated cases that would potentially dispose of the issues in this case. After those cases were decided, Rankine v. Reno, 319 F.3d 93 (2003), the parties submitted additional briefs on the merits of petitioner's claim.
Section 212(c), which was codified at 8 U.S.C. § 1182(c), gave the Attorney General discretion to waive deportation under certain conditions for lawfully admitted permanent residents who had lived in the United States for seven years and not served a prison sentence of five or more years for an aggravated felony. Effective April 24, 1996, Congress enacted the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), § 440(d) of which identified a broad set of offenses for which convictions would preclude 212(c) relief. On September 30, 1996, Congress enacted IIRIRA, § 304(b) of which repealed § 212(c) of the INA and eliminated discretionary relief for anyone convicted of an aggravated felony. See 8 U.S.C. § 1229b(a).
In St. Cyr, the Supreme Court held that individuals who pleaded guilty to crimes prior to the enactment date of IIRIRA remain eligible for § 212(c) relief. I.N.S. v. St. Cyr, 533 U.S. at 323-24, 121 S.Ct. 2271. In two recent decisions, the Second Circuit has held that St. Cyr does not apply to individuals who were convicted after a trial. See Rankine, 319 F.3d at 102 (); Theodoropoulos v. I.N.S., 313 F.3d 732, 739 (2d Cir.2002) ().
Petitioner makes a valiant but unpersuasive effort to avoid the clear import of these cases. Petitioner contends that unlike the petitioners in Rankine, and like the petitioner in St. Cyr., he relied to his detriment on the availability of a § 212(c) waiver when deciding whether or not to accent a plea. Specifically, petitioner contends that he turned down a plea offer from the state prosecutor—an offer that would have left him eligible for § 212(c) relief under current law—with the knowledge and in reliance of the fact that he would still be eligible for such relief even if he were convicted at trial. Petitioner argues that construing the 1996 repeal of § 212(c) relief retroactively to cover his conviction would thus upset his "settled expectations" at the time he chose to reject the plea deal.
Whatever its merit in the abstract, petitioner's argument has been foreclosed by the Second Circuit. In Rankine, several criminal defense organizations, participating as amici, raised the analogous argument that they would have counseled their clients to take a plea had they known of the future immigration consequences of a conviction at trial. In reasoning that applies equally to petitioner's assertion that he would have taken a plea had he known of these consequences, the Second Circuit stated:
The amici argue that aliens who went to trial relied on their right to seek § 212(c) relief in a manner similar to those who pled guilty and that their decisions to stand trial were made in accordance with their belief that they were preserving their eligibility for relief. Amici claim that, as criminal defense lawyers, they would have counseled aliens like Rankine and Lawrence to seek pleas that preserved the possibility of § 212(c) waiver if they had known the true immigration consequences— post IIRIRA and AEDPA—of the decision to go to trial.
What amici overlook in their arguments is that while aliens who chose to go to trial may have considered the availability of § 212(c) relief,...
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Swaby v. Ashcroft
...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 Petitioner is a native of Jamaica and a citizen of the United Kingdom and its colonies, and was, until recently, a ......