Then v. I.N.S.

• Decision Date: 22 June 1999
• Docket Number: No. Civ.A. 98-5523AJL.,Civ.A. 98-5523AJL.
• Citation: 58 F.Supp.2d 422
• Parties: Simon B. THEN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. District Court — District of New Jersey

58 F.Supp.2d 422

Simon B. THEN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. Civ.A. 98-5523AJL.

United States District Court, D. New Jersey.

June 22, 1999.

Simon B. Then, Newton, NJ, pro se.

Faith Hochberg, United States Attorney, Dan Gibbons, Asst. United States Attorney, Newark, NJ, for United States.

Andreas Quarantino, District Director of the United States Immigration and Naturalization Service, Newark, NJ, for respondent.

OPINION

LECHNER, District Judge.

This is an action brought by pro se petitioner, Simon B. Then ("Then"), a detainee at the Detention Center of the Immigration and Naturalization Service (the "INS"), in Newton, New Jersey, against respondent, the INS.¹ Presently pending is the petition (the "Petition") of Then for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 ("Section 2241"). Then specifically seeks relief from a final order of deportation (the "Final Order of Deportation").²

For the reasons set forth below, the Petition is dismissed with prejudice.

Background

A. Facts

Then is a native and citizen of the Dominican Republic. See Petition at ¶ 5. He entered the United States in 1983. See id. at ¶ 7.

In October 1993, a State grand jury indicted Then in a four-count indictment (the "Indictment"). The first two counts of the Indictment charged Then with possession of a controlled dangerous substance with intent to distribute, in violation of N.J.S.A. 2C:35-10a(1), 2C:35-5a(1) and 2C:35-5b(3). See Judgment of Conviction and Order of Commitment (the "Judgment and Order"). Count three ("Count Three") of the Indictment charged Then with possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7 and 2C:35-5a. See id. The fourth count charged Then with violating N.J.S.A. 2C:28-4a for writing false reports. See id.

On 15 March 1995, Then pleaded guilty to Count Three of the Indictment (the "Guilty Plea"). See Then Aff. at ¶ 4. A judgment of conviction (the "Judgment of Conviction") was issued by the New Jersey Superior Court, Law Division, Passaic County (the "Superior Court") on 30 June 1995. See Judgment and Order. Then was sentenced to a minimum prison term of fourteen months. See Then Aff. at ¶ 5; Judgment and Order.

The Guilty Plea rendered Then deportable pursuant to Section 241(a)(2)(B)(i) ("Section 241") of the Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1227(a)(2)(B)(i) (formerly 8 U.S.C. § 1251).³ Consequently, upon his completion of the fourteen month prison term, Then was placed by the INS in deportation proceedings. See Then Aff. at ¶ 3. Deportation proceedings were commenced on or about 12 August 1996 when the Government issued a Notice of Hearing and an Order to Show Cause requiring Then to show cause why he should not be deported.⁴ See Amended Answer at 1. After appearing without counsel before immigration judge John A. Duck, Jr. (the "Immigration Judge") on 29 October 1996, see Then Aff. at ¶ 6; Amended Answer at 2, Then was permitted to hire an attorney and was released upon posting bond. See id. at ¶ 7. Then thereafter consented to having his new attorney, Jose W. Vega, Esq. ("Vega") conduct the subsequent deportation proceedings and appear on his behalf. See Then Aff. at ¶ 7; Amended Answer at 2.

On 7 March 1997, a deportation hearing (the "7 March 1997 Deportation Hearing") was held before the Immigration Judge. According to the Government, at that time, Vega, on behalf of Then, requested a waiver of deportation (the "212(c) Application"), pursuant to Section 212(c) ("Section 212(c)") of the INA, 8 U.S.C. § 1182(c).⁵ See 7 March 1997 Deportation Hearing Transcript (the "Deportation Hearing Tr.") at 5:6-10.⁶

In an oral decision, dated 7 March 1997, (the "7 March 1997 Decision"), the Immigration Judge refused to grant the 212(c) Application. In so doing, the Immigration Judge stated:

[Then] has asked to apply, through counsel, for a 212(c) waiver. However, I note that the respondent [Then] has been convicted for the crime of possession of cocaine and heroine with intent to distribute within 1,000 feet of a school. I find, therefore, that that [sic] crime is an aggravated felon [sic], making him ineligible for that 212(c) waiver sought by the respondent. There is not [sic] other relief sought nor is there any known by the government or this Court.... Therefore, it is the order of the Court that the respondent be deported from the United States to the Dominican Republic....

7 March 1997 Decision at 1-2.

It appears the Immigration Judge, in refusing to grant the 212(c) Application, placed reliance upon Section 241(a)(2)(B)(i) of the INA. See 8 U.S.C. § 1227(a)(2)(B)(i); see also supra n. 3. It further appears the Immigration Judge took into account § 440(d) ("Section 440(d)") of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, tit. I, § 105(2), 110 Stat. 1214 (24 April 1996) (the "AEDPA"). Section 440(d) added the following language to Section 212(c):

[Section 212(c)] shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in Section 241(a)(2)(A)(iii) [aggravated felony], (B) [controlled substance offenses], (C) [firearms offenses], or (D) [offenses against national security] .... AEDPA § 440(d), 110 Stat. 1214, 1217 (emphasis added).⁷ Based upon the Judgment of Conviction of Then which, as stated, fell under Section 241(a)(2)(B)(i), the Immigration Judge found Then statutorily ineligible for a waiver under Section 212(c).

Also during the 7 March 1997 Deportation Hearing, Vega, on behalf of Then, admitted the five allegations contained in the Order to Show Cause and conceded Then's deportability. See Deportation Hearing Tr. at 3-4; Amended Answer at 2.

Vega appealed the 7 March 1997 Decision to the Board of Immigration Appeals (the "BIA") on 10 April 1997 (the "Appeal"). See Then Aff. at ¶ 10. In support of the Appeal, Vega, on behalf of Then, argued:

The Respondent [Then] should be eligible for a 212(c) waiver. He was convicted prior to the enactment of the Antiterrorism and Effective Death Penalty Act. This Act should not be applied retroactively. Furthermore, the Respondent is being denied equal protection of the laws by not being allowed an opportunity to apply for a 212(c) waiver because if he was in exclusion proceedings he would be eligible for this waiver. See Matter of Silva, 16 I & N Dec 26 (BIA 1996)[sic].

See Appeal.

By order, dated 28 January 1998, (the "28 January 1998 Order"), the BIA deemed the Appeal untimely because it was not filed within thirty calendar days of the 7 March 1997 Decision. See 28 January 1998 Order. The BIA stated: "The Immigration Judge's decision is accordingly now final[.]" Id.; See Then Aff. at ¶ 10.

Following the denial of the Appeal by the BIA, Vega indicated to Then's family, via facsimile transmittal (the "Vega Facsimile"), that even if timely filed, the Appeal would have been denied because the AEDPA is applied retroactively to all cases by the BIA. See Then Aff. at ¶ 11; Vega Facsimile attached thereto.

In support of the instant Petition, Then alleges (1) his constitutional right to due process was violated when the Immigration Judge retroactively applied AEDPA Section 440(d) to bar his 212(c) Application, see Petition at ¶¶ 2, 3, 16-17, and (2) he was denied effective assistance of counsel. Then specifically alleges Vega waived his rights to a fair hearing before the Immigration Judge by admitting all the charges lodged against him by the INS without his permission. See id. at ¶ 3; Then Aff. at ¶ 8. He further alleges Vega, despite knowing an appeal not filed by 7 April 1997 would be deemed untimely, nevertheless filed the Appeal on 10 April 1997. See Then Aff. at ¶ 10. Then alleges the Appeal

d[id] not examine the legal consequences derived from the [Immigration Judge's] retroactive application of the [AEDPA] enacted by April 24, 1996.... I was placed in deportation proceedings for a drug-possessory crime committed on October 26, 1993, at least 2 years before the creation of the aforesaid statutes by Congress.

Petition at ¶ 2.

B. Procedural History and Intervening Law

As noted, Then originally filed the Preliminary Injunction Application seeking to enjoin the INS from deporting him and seeking to obtain release from his present incarceration at the Detention Center pending "a full and fair hearing on the merits of the 212(c) case." See Petition at Prayer for Relief ¶ 3.

The Preliminary Injunction Application was denied by order and opinion, dated 14 December 1998. See Then I, 37 F.Supp.2d at 362. Then I also directed the Government to file an answer by 15 January 1999. See id. In compliance with Then I, the Government filed the Answer to the Petition on 11 January 1999. See Answer. The Answer alleged, inter alia, Congress removed jurisdiction from the district courts to review immigration decisions with the exception of "core constitutional issues protected by the Suspension Clause⁸ of the Constitution."⁹ Answer at 4. The Answer additionally alleged Vega's admission of the five allegations against Then at the 7 March 1997 Deportation Hearing did not prejudice Then because the allegations were, in fact, accurate. See Answer at 7-8. The Government further alleged the untimely Appeal did not prejudice Then because the Immigration Judge correctly denied the 212(c) Application. See id. at 11.

Then filed a reply to the Answer on 25 January 1999 (the "Reply Brief"). In the Reply Brief, Then argued that habeas jurisdiction survived the enactment of AEDPA Section 440(a). See Reply Brief at ¶ 2. With regard to his claim of ineffective assistance of counsel, Then specifically alleged Vega was "legally ineffective" because he failed to "develop any Pre-AEDPA or Pre-IIRIRA defense or legal basis, ... file a brief in support of the appeal [or] file a motion to reopen and reconsider." Id. at ¶¶ 11-12. ...