Then v. I.N.S.

• Decision Date: 14 December 1998
• Docket Number: No. Civ.A. 98-5523 (AJL).,Civ.A. 98-5523 (AJL).
• Parties: Simon B. THEN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. District Court — District of New Jersey

37 F.Supp.2d 346

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

No. Civ.A. 98-5523 (AJL).

United States District Court, D. New Jersey.

December 14, 1998.

COPYRIGHT MATERIAL OMITTED

Simon B. Then, South Kearny, NJ, petitioner pro se.

Andreas Quarantino, District Director of U.S. Immigration and Naturalization Service, Newark, NJ, for respondent.

Faith Hochberg, United States Attorney, Dan Gibbons, Assistant United States Attorney, Newark, NJ, for U.S.

OPINION

LECHNER, District Judge.

This is an action brought by the pro se petitioner, Simon B. Then (the "Petitioner" or "Then"), a detainee at the Detention Center of the Immigration and Naturalization Service (the "INS"), Jersey City, New Jersey, against the respondent, the INS. Presently pending is the petition (the "Petition") of Then for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 ("Section 2241"), seeking, inter alia, a preliminary injunction (the "Preliminary Injunction Application") enjoining the deportation of the Petitioner from the United States and relief from a final order of deportation (the "Final Order of Deportation").¹

For the reasons set forth below, the Preliminary Injunction Application is denied.

Background

The Petitioner 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) and 2C:35-5a(1) & b(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, the Petitioner 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, on 30 June 1995. See Judgment and Order. On the same date, the Petitioner 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 § 241(a)(2)(B)(i) ("Section 241") of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(B)(i) (formerly 8 U.S.C. § 1251).² Consequently, upon his completion of the fourteen month prison term, Then was placed by the INS in deportation proceedings. See Then Aff. at ¶ 3.

On 7 March 1997, deportation proceedings (the "7 March 1997 Deportation Proceedings") were held before immigration judge John A. Duck (the "Immigration Judge"). In an oral decision, dated 7 March 1997, (the "7 March 1997 Decision"), the Immigration Judge refused to grant the application of Then for a waiver of deportation (the "212(c) Application"), pursuant to § 212(c) ("Section 212(c)") of the INA, 8 U.S.C. § 1182(c).³ In this regard, 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 entertain the 212© 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. 2. 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):

This section 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).⁴ Based upon the Judgment of Conviction of Then which, as stated, falls under Section 1227(a)(2)(B)(i), the Immigration Judge found Then statutorily ineligible for a waiver under Section 212(c).

At the 7 March 1997 Deportation Proceedings, Jose W. Vega, Esq. ("Vega"), appeared on behalf of Then. See Then Aff. at ¶¶ 7, 8.

Vega also 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: "[t]he Immigration Judge's decision is accordingly now final[.]" See id.; Then Aff. at ¶ 10.

Following the denial of the Appeal by the BIA, Vega indicated to Then's family, via fax 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 Preliminary Injunction Application, the Petitioner alleges, inter alia, his constitutional right to due process was violated when the Immigration Judge retroactively applied the AEDPA to bar his 212(c) Application. See Petition at ¶¶ 2, 3, 16-17. The Petitioner also 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. The Petitioner 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 specifically 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, 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.

The Petitioner requests a preliminary injunction enjoining the INS from deporting him and release from his present incarceration at the Detention Center pending "a full and fair hearing on the merits of the 212(c) case." See id. at Prayer for Relief.

Discussion

A. Standard of Review for Pro Se Submissions

Pro se submissions, "`however inartfully pleaded,' must be held to `less stringent standards than formal pleadings drafted by lawyers' and can only be dismissed for failure to state a claim if it appears `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), reh'g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977); see also Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652, reh'g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3d Cir.1996); United States v. Day, 969 F.2d 39, 42 (3d Cir.1992) (holding pro se petition cannot be held to same standard as pleadings drafted by attorneys); Lewis v. Attorney General of United States, 878 F.2d 714, 722 (1989).

When receiving a pro se submission from a habeas petitioner, the habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir.1998); Lewis, 878 F.2d at 721; United States v. Brierley, 414 F.2d 552, 555 (3d Cir.1969), cert. denied, 399 U.S. 912, 90 S.Ct. 2206, 26 L.Ed.2d 566 (1970) ("We should recognize that a habeas corpus petition prepared by a prisoner without the aid of counsel may be inartfully drawn and should therefore be read `with a measure of tolerance.' It is the policy of courts to give a liberal construction to pro se habeas petitions.") (citations omitted); see also Neitzke v. Williams, 490 U.S. 319, 330 n. 9, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Haines, 404 U.S. at 520, 92 S.Ct. 594; Roman v. Jeffes, 904 F.2d 192, 197 (3d Cir.1990).

B. Standard for Preliminary Injunctive Relief

Injunctive relief is an extraordinary remedy. When reviewing the Preliminary Injunction Application of the Petitioner, the following four factors (the "Injunction Factors") must be considered:

(1) the likelihood that [Then] will prevail on the merits at final hearing;

(2) the extent to which [Then...