Thom v. Ashcroft

• Decision Date: 27 May 2004
• Docket Number: Docket No. 01-2404.
• Citation: 369 F.3d 158
• Parties: Lennox THOM, Petitioner-Appellant, v. John ASHCROFT, Attorney General of the United States, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 158

369 F.3d 158

Lennox THOM, Petitioner-Appellant, v. John ASHCROFT, Attorney General of the United States, Respondent-Appellee.

Docket No. 01-2404.

United States Court of Appeals, Second Circuit.

Argued: January 26, 2004.

Decided: May 27, 2004.

Jonathan Svetkey, Watters & Svetkey, LLP, New York, NY, for Petitioner-Appellant.

Michael M. Krauss, Assistant United States Attorney, for James B. Comey, United States Attorney, Southern District of New York (Kathy S. Marks, Sara L. Shudofsky, Assistant United States Attorneys, on the brief), for Respondent-Appellee.

Before: NEWMAN and CALABRESI, Circuit Judges, and UNDERHILL,^* District Judge.

CALABRESI, Circuit Judge:

Petitioner Lennox Thom ("Petitioner") sought a writ of habeas corpus to vacate his final order of removal and to direct the Board of Immigration Appeals to adjudicate his application for 212(c) relief from deportation. The United States District Court for the Southern District of New York (Mukasey, C.J.) denied his petition, holding that he is ineligible for 212(c) relief under three provisions of the immigration law: 1) the so-called five-year bar, established by section 511 of the Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978, 5042 (Nov. 20, 1990) (codified at 8 U.S.C. § 1182(c) (1994) (repealed)), which precludes otherwise eligible lawful permanent resident aliens from applying for 212(c) relief if they have served at least five years in prison for an aggravated felony conviction; 2) section 440(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which eliminated 212(c) relief for certain criminal aliens, including those convicted of aggravated felonies, irrespective of the amount of time they served in prison; and 3) section 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, 594-97 (Sept. 30, 1996), which repealed 212(c) relief and replaced it with a form of relief called "cancellation of removal," which is unavailable to aggravated felons.

We agree that Petitioner is ineligible for 212(c) relief and affirm the judgment of the district court.

BACKGROUND

Petitioner, a Guyanan national, entered the United States as a lawful permanent resident in 1969. In 1982, after what we now know was a trial in New York state court, he was convicted of second degree murder and of criminal possession of a weapon in the second degree. He was sentenced to a term of imprisonment of twenty years to life. Later that year, he was again convicted in New York state, this time for criminal possession of marijuana in the second degree, and was sentenced to one year in prison.

Upon Petitioner's incarceration in New York's Downstate Correctional Facility, various notifications and documents were exchanged between that state prison and the Immigration and Naturalization Service ("INS").¹ As these communications are relevant to one of Petitioner's claims, we will review them briefly. In a form dated October 29, 1982, the prison notified the INS of Petitioner's murder conviction and that his earliest possible release date was October 4, 2001. On May 30, 1984, the INS sent the prison a standard "detainer" notice — formally known as an "Immigration Detainer — Notice of Action." This form indicated that an "[i]nvestigation has been initiated to determine whether this person [Petitioner] is subject to deportation." The document stated that it was "for notification purposes only" and that it did not limit the prison's discretion with respect to any decision affecting the Petitioner. The document also directed the prison to notify the INS at least 30 days prior to Petitioner's release or in the event of his death or transfer. On July 6, 1984, the INS sent the prison another such detainer notice.

On April 13, 1987, the INS requested that the prison furnish it with a copy of Petitioner's sentence and commitment order, and the prison answered this request shortly thereafter. The prison also complied with a similar request dated May 11, 1987. On January 27, 1988, the INS was notified that the Petitioner had been transferred to the Sullivan Correctional Facility.

Over ten years later — and three years before the expiration of Petitioner's minimum sentence — the INS sent the prison another detainer notice, as well as a Notice to Appear and a Warrant for Arrest, all dated June 3, 1998. The Notice to Appear was served on Petitioner by regular mail on June 9, 1998. The Notice to Appear charged: 1) that Petitioner's murder conviction rendered him removable as an aggravated felon under sections 101(a)(43)(A) and 101(a)(43)(F) of the Immigration and Nationality Act (INA), and 2) that his marijuana conviction rendered him removable as an alien convicted of a controlled substance offense under section 237(a)(2)(B)(i) of the INA.

At his March 31, 1999 removal hearing before an Immigration Judge (IJ), Petitioner, through counsel, admitted his murder and marijuana convictions and conceded removability as an alien convicted of a controlled substance offense. He argued, however, that because his 1982 murder conviction preceded the relevant statutory definition of "aggravated felony," which was established by Congress in 1988, see Anti-Drug Abuse Act of 1988, § 1227(a)(2)(A)(iii), Pub.L. No. 100-690, 102 Stat. 4181, 4469-4470 (Nov. 18, 1988), his conviction was not for an aggravated felony, and that to apply this definition retroactively would be unconstitutional. Petitioner also maintained that he was eligible for 212(c) relief. See 8 U.S.C. § 1182(c) (1994) (repealed).

The IJ found Petitioner removable as charged. It held that Petitioner's murder conviction qualified as an "aggravated felony" despite the fact that the conviction pre-dated the relevant statutory definition of that term. It further held that Petitioner was ineligible for 212(c) relief, because the IIRIRA had abolished that form of relief for all removal proceedings instituted after April 1, 1997. It also noted that, while the AEDPA's elimination of 212(c) relief for aggravated felons did not apply to aliens who were already in deportation proceedings on the date of that law's enactment, April 24, 1996, see Henderson v. INS, 157 F.3d 106, 128-130 (2d Cir.1998), there was no indication that Petitioner was in proceedings at that time. Finally, the IJ pointed out that, even if the AEDPA and IIRIRA did not apply to Petitioner, he would be independently precluded by the five-year bar from seeking 212(c) relief. See 8 U.S.C. § 1182(c) (1994) (repealed) (barring 212(c) relief for any "alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years").²

Petitioner then appealed, pro se, to the BIA. In addition to the arguments he made to the IJ, he asserted that, even if his removal proceedings had begun in 1998, the doctrine of laches should bar the INS from applying current law to him, since the INS waited sixteen years from the time of his murder conviction to institute removal proceedings. The BIA agreed with the IJ's determinations, and stated that it could not consider Petitioner's laches argument, because it lacked authority to apply the doctrine of equitable estoppel against the government. Accordingly, the BIA dismissed the appeal.

On February 23, 2001, Petitioner, again proceeding pro se, filed a habeas petition under 28 U.S.C. § 2241 in the United States District Court for the Southern District of New York. He made three arguments: 1) that the IIRIRA and the AEDPA's elimination of 212(c) relief may not be applied retroactively to his 1982 murder conviction; 2) that his deportation proceedings in fact commenced in 1984 upon the INS's issuance of a detainer notice in 1984, and that the IIRIRA and the AEDPA therefore do not apply to his case; and 3) that the doctrine of laches precludes the application of post-1990 law to his case.

In an order dated May 31, 2001, the district court (Mukasey, C.J.) rejected all of Petitioner's claims and denied the petition. This appeal followed.³

DISCUSSION

On appeal, Petitioner renews the three arguments that he made to the district court. We find each one unpersuasive and accordingly affirm the judgment below.

I.

First, Petitioner argues that the IIRIRA and the AEDPA's elimination of 212(c) relief cannot be retroactively applied to his 1982 murder conviction, which was obtained after a trial. He contends that the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), which held that these laws may not be applied retroactively to aliens who had pled guilty to deportable offenses, should be extended to cover aliens who were convicted after going to trial. Our decision in Rankine v. Reno, 319 F.3d 93 (2d Cir.2003), however, squarely forecloses this argument. In Rankine, we reasoned that "it is choosing `to forgo fighting the conviction of a qualifying crime and enter a plea' that leads to an expectation of relief from removal. The petitioners here assumed no similarly heightened expectation from their decision to go to trial." Id. at 100 (quoting St. Cyr v. INS, 229 F.3d 406, 419 (2d Cir.2000)). Aliens who decide to go to trial, we held, do not rely on the availability of 212(c) relief, but rather upon "their claim of innocence.... Their reliance, therefore, was on ... `familiar criminal justice considerations' and the application of the criminal laws rather than on the availability of § 212(c) relief." Id. at 102. See also Swaby v. Ashcroft, 357 F.3d 156, 161-62 (2d Cir.2004) (holding that an alien may not escape Rankine's rule by attesting that he relied on the availability of 212(c) relief in rejecting a plea agreement and deciding to go to trial).

Petitioner makes an interesting, but ultimately unpersuasive, attempt to distinguish Rankine. He begins by positing that the only reason that ...