Wilson v. Gonzales, Docket No. 04-5869-PR(L).
| Decision Date | 07 December 2006 |
| Docket Number | Docket No. 04-5869-PR(L).,Docket No. 04-5973-(XAP). |
| Citation | 471 F.3d 111 |
| Parties | William Woodrow WILSON, Petitioner-Appellee-Cross-Appellant, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States; Doris Meissner, Commissioner, Immigration and Naturalization Service; Edward McElroy, New York District Director, Immigration and Naturalization Service; Lynne Underdown, New Orleans District Director, Immigration and Naturalization Service; Immigration and Naturalization Service, United States Department of Justice, Respondents-Appellants-Cross-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Matthew L. Guadagno, New York, N.Y. (Ruchi Thaker, Kerry W. Bretz, Jules E. Coven, Chungmi Michelle Hua, on the brief, and Bretz & Coven, LLP, of counsel), for Petitioner-Appellee-Cross-Appellant.
Andrew M. McNeela, Assistant United States Attorney, New York, NY, (Michael J. Garcia, United States Attorney for the Southern District of New York, Kathy S. Marks, Assistant United States Attorney, of counsel), for Respondents-Appellants-Cross-Appellees.
Lee Gelernt, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, N.Y. (Omar C. Jadwat, New York, NY; Lucas Guttentag and Jennifer C. Chang, Oakland, CA; and Trina A. Realmuto and Mary Kenney, American Immigration Law Foundation, Washington, DC, of counsel), for American Immigration Law Foundation and the American Civil Liberties Union Foundation as Amici Curiae in support of Petitioner.
Before: JACOBS, Chief Judge, OAKES and WALKER, Senior Circuit Judges.
The United States appeals and Petitioner-Appellee-Cross-Appellant William Woodrow Wilson ("Wilson") cross-appeals from a November 17, 2004, judgment of the United States District Court for the Southern District of New York (Wood, J.), granting habeas relief to Wilson and remanding the case to the Bureau of Immigration Appeals ("BIA") for further consideration regarding Wilson's eligibility for relief under the repealed § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c).
For the reasons stated below, Wilson is required to make an individualized showing that he decided to forgo the opportunity to affirmatively file for § 212(c) relief in reliance on his ability to file for such relief at a later date. Therefore, the case is remanded to the BIA for further remand so that relevant findings of fact on the issue of such individualized reliance can be made. However, Wilson's cross-appeal regarding the district court's ruling on his eligibility to apply for naturalization is dismissed for failure to exhaust his administrative remedies.
On November 5, 1967, at four years old, Wilson, a native and citizen of Jamaica, was admitted into the United States as a lawful permanent resident. As a young man, in New York State Supreme Court, Queens County, on October 21, 1986, Wilson was convicted by a jury of robbery in the second degree and criminal possession of stolen property in the third degree. On November 12, 1986, he was sentenced to concurrent prison terms of two to six years for the robbery count and one year for the possession count. Wilson served twenty-seven months' imprisonment. The parties agree that, under applicable law at the time of these convictions, neither crime was considered an aggravated felony; therefore, Wilson was not considered deportable.
On February 13, 1987, also in New York State Supreme Court, Queens County, Wilson pleaded guilty to assault in the first degree. Neither Wilson nor the Government elaborates on the underlying facts of this crime. For the assault conviction, Wilson was sentenced to a term of twenty-eight months' to seven years' imprisonment. The term ran concurrently with the sentence Wilson was already serving.
The record also reveals that, subsequently, on April 15, 1993, Wilson was convicted of criminal possession of a weapon. The Government merely mentions this conviction in a footnote, whereby Wilson admitted to the conviction during the course of his removal hearing.
In the fall of 1997, Wilson traveled from the United States to Jamaica for a "brief vacation."1 On October 31, 1997, Wilson returned to the United States. On arrival at the John F. Kennedy Airport in New York City, Wilson presented himself for inspection as a returning lawful permanent resident. An immigration inspector determined that Wilson was inadmissible because of his "lengthy criminal record." Wilson was, therefore, taken into custody and was temporarily detained without bond at 201 Varick Street, New York, New York.
On November 1, 1997, the INS served Wilson with a Notice to Appear. The Notice alleged that Wilson was inadmissible pursuant to (1) INA § 212(a)(2)(A)(i)(I) (codified in 8 U.S.C. § 1182(a)(2)(A)(i)(I) (Supp. II 1996)), because Wilson had been convicted of a crime involving moral turpitude; and (2) INA § 212(a)(2)(B) (codified in 8 U.S.C. § 1182(a)(2)(B) (Supp. II 1996)), because Wilson had been convicted of two or more criminal offenses for which the aggregate sentences of confinement exceeded five years, regardless of whether the offenses involved moral turpitude.
On November 6, 1997, in New York, an immigration judge ("IJ") held a bond hearing for Wilson. The IJ indicated that he did not believe Wilson was eligible for bond based on his classification as an arriving alien, and Wilson withdrew his bond request.
On December 2, 1997,2 Wilson was transferred to Federal Detention Center ("FDC") Oakdale in Louisiana. Thereafter, on December 9, 1997, the INS filed a Notice to Appear with the Immigration Court in Oakdale.
On December 10, 1997, Wilson filed a motion seeking to be reclassified as an "Admitted Alien." In his motion, Wilson argued that his departure from the United States was "brief, casual, and innocent," and that, in keeping with the Supreme Court's decision in Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), Wilson should not be classified as an Arriving Alien. The Oakdale IJ denied Wilson's motion on January 14, 1998. The IJ reasoned that INA § 101(a)(13)(C) (codified in 8 U.S.C. § 1101(a)(13)(C) (Supp. II 1996)), had been amended to provide that a legal permanent resident is regarded as seeking admission if he has committed certain criminal offenses, including crimes of moral turpitude.
On January 26, 1998, Wilson's removal hearing was resumed before the Oakdale IJ. At this hearing, Wilson admitted that he was a native and citizen of Jamaica; that he had been convicted on November 12, 1986, of robbery and criminal possession of stolen property; and that on February 13, 1987, he had been convicted of assault.
The removal hearing was again resumed on February 26, 1998. At this hearing, the IJ entered Wilson's criminal conviction records into evidence without objection and found that Wilson was removable as charged. In addition, the IJ found that Wilson had not acquired derivative citizenship based on his parents' naturalization because his father had not been naturalized prior to Wilson's eighteenth birthday.
In response, Wilson sought a waiver of deportation pursuant to former INA § 212(c) (hereinafter, "§ 212(c)"). Wilson argued that, although § 212(c) had been repealed prior to the commencement of his removal proceedings, he remained eligible for § 212(c) relief because his criminal convictions predated the enactment of both the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, 1277 (Apr. 24, 1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-546, 597 (Sept. 30, 1996). The IJ rejected Wilson's argument, ruling that § 212(c) was unavailable to aliens whose deportation proceedings had commenced after § 212(c) was repealed.
In addition, the IJ denied Wilson's request to terminate the deportation proceedings in order to allow Wilson to apply for naturalization. The IJ reasoned that he lacked the authority to terminate the proceedings because neither the INS nor the naturalization court had indicated that Wilson was eligible for naturalization. On February 26, 1998, the IJ issued an oral decision finding Wilson removable as charged and ineligible for any relief.
On March 13, 1998, Wilson timely appealed the IJ's decision to the BIA. Wilson argued that the IJ erred in applying IIRIRA retroactively to his September 30, 1996, conviction and that the IIRIRA is unconstitutional, violating the Due Process Clause of the Fifth Amendment and international law. Wilson asserted that IIRIRA was impermissively retroactive because its application to pre-IIRIRA convictions attached new legal consequences to past conduct.
The BIA dismissed Wilson's appeal on August 28, 1998, affirming the IJ's determination that Wilson was removable as charged. The BIA agreed with the IJ that Wilson was not eligible for § 212(c) relief because he had been placed in removal proceedings after the repeal of § 212(c).
In addition, the BIA concluded that robbery and assault constituted aggravated felonies as defined by INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (), § 321 of IIRIRA. Accordingly, the BIA found that Wilson was not eligible for cancellation of removal under INA § 240A, 8 U.S.C. § 1229b, or a waiver of removal under INA § 212(h), 8 U.S.C. § 1182(h).
On September 28, 1998, Wilson filed a petition for a writ of habeas corpus in the Southern District of New York. At the time, Wilson was detained at FDC Oakdale in Louisiana. Wilson argued, first, that IIRIRA's repeal of § 212(c) was impermissibly retroactive as applied to him because his convictions predated IIRIRA's enactment. Second, Wilson reasserted his argument that...
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