Wallace v. Reno

• Decision Date: 07 October 1998
• Docket Number: No. CIV. A. 98-11182-NG.,CIV. A. 98-11182-NG.
• Citation: 24 F.Supp.2d 104
• Parties: Tasfa Wolde WALLACE, Petitioner/Plaintiff, v. Janet RENO, Attorney General, Doris Meissner, Commissioner of the Immigration and Naturalization Service, Department of Justice, and Steve Farquharson, District Director, Respondents/Defendants.
• Court: U.S. District Court — District of Massachusetts

24 F.Supp.2d 104

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

No. CIV. A. 98-11182-NG.

United States District Court, D. Massachusetts.

October 7, 1998.

Randy Olen, Providence, RI, for Tasfa Wolde Wallace, Plaintiff.

MEMORANDUM AND ORDER

GERTNER, District Judge.

The petitioner/plaintiff, Tasfa Wolde Wallace ("Wallace"), is an immigrant from Jamaica who first entered this country ten years ago. Just over two years ago, he pleaded guilty to a drug offense, on the basis of which he is automatically subject to deportation. Wallace now comes before this Court, seeking the opportunity to ask an Immigration Judge ("IJ") to take into consideration not just his one crime, but also the humanitarian and social factors that weigh against his expulsion from this country.

The Respondents contend that, due to changes in the immigration laws enacted after Wallace had pled guilty he is no longer entitled even to ask for such discretionary humanitarian consideration. I reject that contention on the basis of the First Circuit's recent holding in Goncalves v. Reno, 144 F.3d 110 (1st Cir.1998). For the reasons set out below, Wallace's petition is GRANTED.

I. FACTS

Wallace is a native and citizen of Jamaica. He entered the United States as an immigrant on May 10, 1988. It appears that he entered lawfully and resided lawfully as a permanent resident.

On February 15, 1996, however, Wallace pleaded guilty to the offense of possession of marijuana with intent to deliver in the Providence Superior Court, Providence, Rhode Island. He was sentenced to ten years imprisonment, three years to serve, seven years suspended, and seven years probation.

Wallace's guilty plea had severe immigration consequences, unknown to him at the time. As an "aggravated felon" and alien convicted of a controlled substance offense, he suddenly became deportable from this country, with no possibility of return. Immigration and Nationality Act ("INA") §§ 241(a)(2)(A)(iii) and 241(a)(2)(B)(i), 8 U.S.C. §§ 1101(a)(43), 1182(a)(2)(c), 1251(a)(2)(A)(iii), 1251(a)(2)(B)(i). Nevertheless, at the time Wallace chose to plead guilty, discretionary relief for deportation under INA § 212(c), 8 U.S.C. § 1182(c) was still available to him. Within months, however, the law would change and even the avenue for relief from deportation would be off, at least prospectively.

One month after Wallace's conviction, on March 18, 1996, the INS issued an Order to Show Cause ("OSC"), which it served on Wallace two days later. The OSC informed Wallace that he was deportable because of his conviction and ordered him to appear for a hearing before an Immigration Judge to show cause why he should not be deported. The Office of the Immigration Judge would schedule a hearing date, the OSC stated, and give Wallace notice of it by mail.

After serving Wallace with the OSC, the INS took no action on his case for almost three months. Finally, on June 14, 1996, the INS filed the OSC with the Office of the Immigration Judge ("Immigration Court") in Boston.¹

Wallace's first hearing was not held until December 18, 1996. At that first hearing, Wallace admitted to the facts of his conviction and conceded deportability. He also indicated his desire to apply for discretionary relief from deportation under INA § 212(c), based on his ties to this country.² The hearing was continued until August 19, 1997.

At Wallace's final August hearing, the Immigration Judge refused to hear his request for discretionary relief, finding that amendments to § 212(c) enacted in April of the previous year had made him ineligible to apply. Accordingly, the IJ found Wallace deportable on the basis of his criminal conviction and ordered him deported to Jamaica. Wallace appealed this decision to the Board of Immigration Appeals ("BIA"), which, on May 5, 1998, affirmed the IJ's decision that he was ineligible for § 212(c) relief.

Because Wallace is considered an "aggravated felon," he is barred by recent amendments to the immigration laws from seeking any direct judicial review of the BIA's decision that he is ineligible to apply for § 212(c) relief. INA § 106(a)(10), 8 U.S.C. § 1105(a)(10) (amended by AEDPA § 440(a)); Kolster v. INS, 101 F.3d 785, 786 (1st Cir.1996). He brings this habeas petition before this court, arguing that the BIA's finding of ineligibility was both erroneous as a matter of statutory interpretation and unconstitutional as applied in his case. He asks this Court to direct the BIA to consider his request for relief from deportation.

Put simply, all he seeks through this petition is the opportunity to be heard.

II. DISCUSSION

A. Discretionary Relief From Deportation under INA § 212(c)

Wallace's deportability is not in doubt. At the time Wallace was convicted of possession of marijuana with intent to distribute, the INA provided that any 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).³ Wallace's only defense against deportation was therefore to seek discretionary, humanitarian relief on the grounds of his long residence here and his ties to this country. His petition hinges on whether, after the enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, on April 24, 1996, that relief is still available to him.

Until recently, 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:

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 ...

Id. Although the section appears on its face to make relief available only to resident aliens facing "exclusion" at the border upon return from trips abroad, 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). In other words, it would have applied to Wallace.

The decision whether to grant § 212(c) 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.

Prior to AEDPA, 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.⁴ 8 U.S.C. § 1182(c) (1996). Although the record does not reflect exactly how much time Wallace served, he was only sentenced to three years imprisonment. It thus appears undisputed that he would have been eligible for § 212(c) relief.

With the passage of AEDPA, however, several classes of criminal aliens were barred relief. The new § 212(c) concluded:

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].⁵

AEDPA § 440(d), 110 Stat. 1214, 1277. AEDPA thus removed the five-year sentence requirement. It now barred relief for any alien convicted of any aggravated felony, regardless of the time served. Id.⁶

B. Retroactivity

Wallace was served with an Order to Show Cause on March 20, 1996, charging him with deportability on the basis of his February 1996 conviction. AEDPA was not enacted until April 24, 1996. Whether Wallace is still eligible to apply for § 212(c) relief therefore depends primarily on the extent to which AEDPA § 440(d) can be applied retroactively.

1. The First Circuit's Decision in Goncalves

In approaching this question, I am guided by the First Circuit's recent in-depth consideration of the retroactivity of AEDPA § 440(d) in Goncalves v. Reno, 144 F.3d 110. Goncalves, like Wallace, was a long-term permanent resident alien who had committed a criminal offense that rendered him deportable. He was placed in deportation proceedings and, in September 1994, applied for § 212(c) relief. In January 1995, the Immigration Judge in Goncalves' case found that he was eligible for the relief but that, as a matter of discretion, he did not deserve it. Goncalves appealed this decision to the BIA. Id. at 114.

Goncalves faced even lengthier delays than Wallace. Although he appealed to the BIA in early 1995, his appeal was not decided until March 24, 1997. By that time, of course, AEDPA had been passed, rendering aliens with criminal records like Goncalves' ineligible for § 212(c) relief. Although the BIA itself had initially concluded that the new restrictions on § 212(c) should not be applied to § 212(c) applications filed prior to April 24, 1996, by the time it came to consider Goncalves' appeal, that decision had been reversed by the Attorney General. Matter of Soriano, Int. Dec. 3289...