Yesil v. Reno

• Decision Date: 27 February 1997
• Docket Number: No. 96 Civ. 8409 (DC).,96 Civ. 8409 (DC).
• Citation: 958 F.Supp. 828
• Parties: Engin YESIL, Petitioner, v. Janet RENO, Attorney General, et al., Respondents.
• Court: U.S. District Court — Southern District of New York

958 F.Supp. 828

Engin YESIL, Petitioner, v. Janet RENO, Attorney General, et al., Respondents.

No. 96 Civ. 8409 (DC).

United States District Court, S.D. New York.

February 27, 1997.

Michael P. DiRaimondo, Marialaina L. Masi, New York City and Thomas E. Moseley, Newark, NJ, for Petitioner.

Mary Jo White, United States Attorney for the Southern District of New York by Diogenes P. Kekatos, Pierre M. Gentin, Assistant United States Attorneys, James A. O'Brien, III, Special Assistant United States Attorney, New York City, for Respondents.

Lucas Guttentag, Lee Gelernt, Laura L. Ho, New York City, for amicus curiae American Civil Liberties Union Foundation, Immigrants' Rights Project.

OPINION

CHIN, District Judge.

Section 212(c) of the Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1182(c), gives the Attorney General of the United States the discretion to waive deportation of certain aliens who are deportable because they have been convicted of a crime. Section 212(c) is a "humane provision" intended to give the Attorney General the ability, in essence, to forgive an individual who has made a serious mistake, but who is deserving of a second chance to remain in the United States because of ameliorating circumstances, including long-standing ties to this country.

Petitioner Engin Yesil ("Yesil") would seem to be such an individual. Although he made a serious mistake by aiding and abetting the distribution of cocaine in 1987, he would seem to be deserving of the second chance contemplated by section 212(c) because he has more than paid his debt to society. He acknowledged his wrongdoing, pled guilty, and served his sentence. At great risk to his life and safety, he cooperated with law enforcement authorities and infiltrated a cocaine and heroin organization. His efforts led to a number of arrests and the seizure of kilograms of drugs. He has also led a productive life in the United States. He has family and strong ties here. He started a company in Florida that evolved into a thriving business with some 250 employees. He has been in the country now for approximately 18 years—including almost ten years as a lawful permanent resident.

Notwithstanding these compelling circumstances, Yesil was not even considered for a waiver of deportation under section 212(c) because, in the deportation proceedings below, the Immigration Judge (the "IJ") and the Board of Immigration Appeals (the "BIA") declared him ineligible, applying reasoning that the Second Circuit rejected some 20 years ago. Consequently, Yesil filed the present petition for a writ of habeas corpus, seeking relief from the BIA's final decision ordering him deported.

The Government opposes the petition with a veritable arsenal of procedural, jurisdictional, and substantive defenses, including lack of personal jurisdiction, the abuse of writ doctrine, and lack of subject matter jurisdiction. With inexplicable fervor, the Government contends on the merits that Yesil's petition is "frivolous"—even though there is Second Circuit law squarely supporting his position, and even though one member of the BIA dissented from the decision below. Moreover, relying on the recently enacted Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (the "AEDPA"), the Government argues that Yesil may be stripped, without any opportunity for judicial review, of his fundamental right to remain in this country. Indeed, the Government maintains that legal permanent residents with long-standing ties to the United States may be deported without any right to seek judicial relief or intervention—even if the deportation order is based on an erroneous interpretation of the law.

Yesil's petition is far from frivolous. Indeed, the Government's arguments are rejected and the petition is granted, as set forth below.

STATEMENT OF THE CASE

A. Statutory Background

1. Section 212(c)

Under the INA, aliens convicted of certain criminal offenses, including "aggravated felon[ies]" and certain drug offenses, are "deportable" and "shall, upon the order of the Attorney General, be deported." INA § 241(a)(2), 8 U.S.C. § 1251(a)(2). Section 212(c) of the INA gives the Attorney General the discretion to waive deportation for lawful permanent residents who have had "lawful unrelinquished domicile" in the United States for "seven consecutive years."¹ 8 U.S.C § 1182(c). Section 212(c), which has been described by the Second Circuit as a "humane provision," was enacted by Congress "to provide the Attorney General the flexibility and discretion to permit worthy aliens to continue their relationships with family members in the United States despite a ground for exclusion." Lok v. INS, 548 F.2d 37, 39 (2d Cir.1977) ("Lok I").

2. The AEDPA

On April 24, 1996, the first anniversary of the Oklahoma City bombing, President Clinton signed into law the AEDPA. Title IV of the AEDPA amends certain provisions of the INA that govern deportation of "alien terrorists" and other aliens convicted of certain criminal offenses.

Section 106 of the INA is entitled "Judicial review of orders of deportation and exclusion, and special exclusion." 8 U.S.C. § 1105a. Subsection (a) provides that

[t]he procedure prescribed by, and all the provisions of chapter 158 of Title 28 shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States [convicted of aggravated felonies], except that....

8 U.S.C. § 1105a(a). Subsection (a) then lists ten sub-subsections, 8 U.S.C. § 1105a(a)(1) to (10), that constitute exceptions to the proviso that the procedures of chapter 158 of Title 28 of the United States Code govern. Chapter 158 sets forth the procedure for obtaining judicial review of final orders of federal agencies, namely, the filing of a petition to review in the appropriate court of appeals. 28 U.S.C. §§ 2342, 2344.

Prior to enactment of the AEDPA, sub-subsection (10) of section 106(a) provided as follows:

(10) Habeas corpus

any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings.

Section 401(e) of the AEDPA struck that language and section 440(a) provided for a new section 106(a)(10):

(10) Any final order of deportation against an alien who is deportable by reason of having committed [certain crimes, including aggravated felonies and controlled substance offenses] shall not be subject to review by any court.

8 U.S.C. § 1105a(a)(10). Hence, the provision permitting judicial review of deportation orders by a petition for writ of habeas corpus was eliminated and replaced by a provision barring review "by any court" of final deportation orders issued against aliens convicted of certain crimes.

3. Section 2241

Section 2241 of Title 28 of the United States Code provides in part as follows:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions....

(c) The writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States....

28 U.S.C. § 2241(a), (c)(3). The AEDPA did not expressly purport to modify section 2241.

B. The Facts

Yesil is a 35-year old native of Turkey who resides in New York City, within the Southern District of New York. (Pet. Mem. at 3; see R. 234, 262, 268).² He entered the United States on a student visa in 1979, when he was 16 years old. (R. 286, 289). On August 21, 1987, he married a United States citizen (R. 105), and on November 17, 1987, he applied for status as a lawful permanent resident on the basis of that marriage. (R. 108-10). His application was granted on March 25, 1988. (R. 114).

Unfortunately, however, Yesil became involved in the illegal distribution of drugs in or about April 1987. (Return, Exh. 2). He was indicted in the United States District Court for the Middle District of Florida in March 1990 for conspiracy to distribute cocaine. (R. 241-49). Following a plea of guilty, Yesil was convicted in November 1990 of aiding and abetting the distribution of one kilogram of cocaine. (R. 240, 250; see Return, Exh. 2). He was sentenced to a six-year term of imprisonment, a three-year term of special parole, and fined $150,000. (Id.).

Yesil began cooperating with law enforcement authorities after he was indicted. (R. 116, 124). The Broward County Sheriff's Office, the State Attorney's Office for the 17th Judicial Circuit of Florida, the Fort Lauderdale Police Department, the Federal Bureau of Investigation, and the United States Attorney for the Middle District of Florida have acknowledged his cooperation and "valuable assistance." (R. 115-31). His efforts, which included working undercover and making "headway in infiltrating" a cocaine and heroin organization, helped lead to "many arrests and multi-kilogram drug confiscations." (R. 116, 118, 124-25; see also R. 131). The United States Attorney for the Middle District of Florida personally wrote a letter attesting to Yesil's "significant cooperation." (R. 130-31). Moreover, "the bulk of [Yesil's] cooperation occurred subsequent to [his] sentence and [was] unrewarded cooperation." (R. 133).³

In July 1986, Yesil founded a contact lens and eyewear company in Florida called Lens Express. (R. 95, 135, 137; compare R. 140 (listing Lens Express as an employer), 283 (same)). It eventually became a "very successful venture" that employed some 250 people. (R. 135). Yesil recently sold the company and started a new business, which employs 25 American workers and uses the services of some 1,600 sales representatives. (Pet. Mem. at 5).⁴

C. The Initial Deportation Proceedings

As Yesil was completing his term of imprisonment at the Federal Correctional Institution in Oakdale, Louisiana, INS commenced...