Wallace v. Reno, 98-11181-NG.

• Decision Date: 19 March 1999
• Docket Number: No. 98-11181-NG.,98-11181-NG.
• Citation: 39 F.Supp.2d 101
• Parties: Okomo Nkomo WALLACE, Petitioner/Plaintiff, v. Janet RENO, Attorney General, Doris Meissner, Commissioner of the Immigration and Naturalization Service, and Steve Farquharson, District Director, Respondents/Defendants.
• Court: U.S. District Court — District of Massachusetts

39 F.Supp.2d 101

Okomo Nkomo WALLACE, Petitioner/Plaintiff, v. Janet RENO, Attorney General, Doris Meissner, Commissioner of the Immigration and Naturalization Service, and Steve Farquharson, District Director, Respondents/Defendants.

No. 98-11181-NG.

United States District Court, D. Massachusetts.

March 19, 1999.

MEMORANDUM AND ORDER OF REMAND

GERTNER, District Judge.

The petitioner/plaintiff, Ojomo Nkomo Wallace ("Wallace")¹ petitions for a writ of habeas corpus on statutory and constitutional grounds. Wallace seeks to have his case remanded to the Board of Immigration Appeals ("BIA") for a hearing on the merits of his Immigration and Naturalization Act ("INA") § 212(c), 8 U.S.C. § 1182(c), application for discretionary relief.² The issue is a critical one. Traditionally, an application under 212(c) was the way that petitioners could defend against deportation. It was the means by which to show more of their humanity — their ties to this country, their contributions to the polity — than the label "alien" otherwise suggested.

The issue was especially critical for this petitioner. There was no question as to Wallace's deportability. At the time he was convicted of possession of marijuana with intent to distribute, the INA provided that an alien convicted of any controlled substance offense, at any time after entry, was deportable. INA § 241(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B) (1996) [formally 8 U.S.C. § 1251] (West Supp.1998). It did not matter how long the alien had been in this country, how aberrant the criminal conduct was in the alien's life, or, with one exception,³ how minor the offense was. Wallace's only defense was to seek discretionary relief on the grounds of his long residence here and his ties to this country under § 212(c). His petition, like many others similarly situated, hinged on whether, after the enactment of the Anti-Terrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996) ("AEDPA"), discretionary relief was still available to him at all.

At his deportation hearing, Wallace attempted to apply for § 212(c) discretionary relief from deportation. The Immigration Judge ("IJ") denied his request, finding that § 440(d) of AEDPA rendered him ineligible. Wallace's subsequent appeal to the Board of Immigration Appeals ("BIA") was also denied on the same grounds.

Wallace filed this complaint, contending that even if § 440(d) applies to his case, construing the law to bar § 212(c) relief to aliens in deportation proceedings, but not those in exclusion proceedings, violates the Equal Protection Clause guaranteed by the Fifth Amendment of the United States Constitution.⁴

For the reasons stated below, I agree with the petitioner's Equal Protection Argument. Therefore, Wallace's Petition for Writ for Habeas Corpus is GRANTED.

I. FACTS

Wallace is a native and citizen of Jamaica. He entered the United States as an immigrant on May 10, 1988. He was fourteen years old. He has lived here — apparently without a problem — for eight years.

On September 19, 1996, Wallace was convicted in the Providence Superior Court, Providence, Rhode Island, of possession of marijuana with intent to distribute.⁵ Although he was sentenced to twenty years imprisonment, he was obliged to serve only three years, with seventeen years of the sentence suspended.

As a result of this conviction, for what immigration law characterizes as an "aggravated felony," Wallace was subject to deportation. 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i). Accordingly, the INS issued an administrative Order to Show Cause ("OSC") on October 15, 1996; his deportation proceedings began on April 17, 1997. At his final hearing on August 19, 1997, Wallace conceded deportability and immediately filed for discretionary relief from deportation under INA § 212(c). The IJ denied his request because § 440(d) of AEDPA, enacted the year before, on April 24, 1996, rendered Wallace ineligible for § 212(c) relief. Accordingly, the IJ ordered Wallace deported to Jamaica.

On September 4, 1997, Wallace filed a timely appeal of the IJ's decision to the BIA. The BIA dismissed his appeal on May 15, 1998, affirming the IJ's decision. Wallace filed the instant action on June 16, 1998. Wallace is detained pending execution of the deportation order.

II. DISCUSSION

A. Statutory History

Until the recent amendments to the INA, a request for the humanitarian relief Wallace seeks was made by applying for a waiver of "excludability" under INA § 212(c), 8 U.S.C. § 1182(c). INA § 212(c) provided that:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years may be admitted in the discretion of the Attorney General .... The first sentence of this subsection shall not apply to an 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. Id.

Although the language of the text provides only for relief to resident aliens facing "exclusion," it has long applied with equal force to lawful residents facing deportation. See Francis v. INS, 532 F.2d 268, 273 (2d Cir.1976); Matter of Silva, Int. Dec. 2532 (BIA 1976) (adopting Francis nationwide); Campos v. INS, 961 F.2d 309, 313 (1st Cir.1992) (adopting Francis and Silva in the First Circuit). Had the law not changed in 1996, § 212(c) would have applied to Wallace in his deportation proceedings.

Under the former § 212(c), an IJ's decision whether to grant the relief was a discretionary one, based on a balancing of equities — including the alien's length of residence here, especially if it began at a young age; her family ties; the hardship to the alien if deported; proof of rehabilitation; work history; military service to this country; ownership of a business or property here; and any other evidence of her good character and value to the community and the nation. See Matter of Marin, 16 I. & N. Dec. 581, 584-85 (BIA 1978). Apart from his long residence here, the record does not reflect what Wallace's equities are because he was never allowed to apply for § 212(c) relief.

What is clear is that nothing about Wallace's conviction and imprisonment would have automatically disqualified him. Even an alien convicted of an "aggravated felony," such as drug trafficking, could apply for § 212(c) relief unless he had served five or more years in prison for the felony.⁶ 8 U.S.C. § 1182(c). Although the record does not reflect how much time Wallace actually served, he was only sentenced to three years imprisonment.

With the passage of AEDPA, however, several additional classes of aliens with criminal convictions were barred relief, now regardless of the time served on the charge. AEDPA § 440(d) changed the last sentence of § 212(c) to read:

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], or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i) [crimes of moral turpitude].

AEDPA § 440(d), 110 Stat. 1214, 1277. Thus, Wallace, solely by dint of his conviction for possession of marijuana with intent to distribute, is now under the BIA's interpretation of AEDPA, barred from seeking § 212(c) relief in his deportation proceeding. See id.

But the language of AEDPA's § 440(d) was curious. It eliminated § 212(c) relief for any "alien who is deportable by reason of having committed any criminal offense." See ADEPA § 440(d) (italics added). It made no mention of aliens in exclusion proceedings.⁷ Resolving the question, on May 14, 1997, the BIA held that § 440(d) did not apply to aliens in exclusion proceedings, but did apply to aliens in deportation proceedings. In Re Fuentes Campos, Int. Dec. (BIA) 3318, 1997 WL 269368 (May 14, 1997) (lawful permanent resident applying for re-entry into United State who was deemed excludable — due to controlled substance offense conviction — permitted to apply for § 212(c) relief).

AEDPA was followed by the enactment of Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") on April 1, 1997. IIRIRA repealed § 212(c) as amended by AEDPA § 440(d), eliminating that relief entirely as to those in both exclusion and deportation proceedings. Pub.L. 104-208, Div. C, Title III, § 304(b), Sept. 30, 1996, 110 Stat. 3009-597. IIRIRA § 304(a)(7) unmistakably consolidates "deportation" and "exclusion" proceedings into a single category — "removal" proceedings; it then bars § 212(c) relief to all immigrants in such proceedings. While IIRIRA would have ended the exclusion/deportation debate in this case, the applicable provision of the IIRIRA was expressly made prospective, applying only to those proceedings commenced after April 1, 1997.⁸ IIRIRA, § 309(c), Goncalves, 144 F.3d at 116.

B. Equal Protection

In this relatively small window — between the old law and the new, when the BIA legitimized the deportation/exclusion distinction — the Equal Protection debate still rages. Wallace argues that the BIA's interpretation of § 440(d), denying § 212(c) relief to deportable aliens, while still permitting those in exclusion proceedings to apply, is irrational and arbitrary, not in furtherance of a legitimate governmental interest. As such, it violates the Equal Protection guarantees of the Due Process Clause of the Fifth Amendment.

Apart from Wallace, the argument applies to a narrow category of aliens: (a) who would have been eligible for § 212(c) relief, had it been available, (b) whose deportation proceedings were still pending as of the effective date of IIRIRA (April 1, 1997),⁹ and thus not affected by IIRIRA, and...