Zayas v. I.N.S.

• Decision Date: 18 November 2002
• Docket Number: No. 01-2564.,01-2564.
• Citation: 311 F.3d 247
• Parties: Raniel Perez ZAYAS, Appellant v. IMMIGRATION & NATURALIZATION SERVICE.
• Court: U.S. Court of Appeals — Third Circuit

311 F.3d 247

Raniel Perez ZAYAS, Appellant v. IMMIGRATION & NATURALIZATION SERVICE.

No. 01-2564.

United States Court of Appeals, Third Circuit.

Argued: February 4, 2002.

Filed: November 18, 2002.

Daniel I. Siegel, James V. Wade, Office of Federal Public Defender, Harrisburg, PA, Melinda C. Ghilardi (Argued), Office of Federal Public Defender, Scranton, PA, for Appellant.

Robert D. McCallum, Jr., Assistant Attorney General, Christopher C. Fuller, Senior Litigation Counsel, Lyle D. Jentzer (Argued), United States Department of Justice, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Appellee.

Before SLOVITER and AMBRO, Circuit Judges, and POLLAK, District Judge.^*

OPINION OF THE COURT

POLLAK, District Judge.

In this appeal, we consider the applicability to petitions for habeas corpus filed pursuant to 28 U.S.C. § 2241 of both (1) the "gatekeeping mechanism" by which 28 U.S.C. § 2244(b) limits the filing of second or successive petitions for habeas corpus, and (2) the "abuse of the writ" doctrine as expressed in the Supreme Court's decision in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). We will affirm the District Court's decision dismissing the petition of appellant Raniel Perez Zayas for abuse of the writ.

I. FACTUAL AND PROCEDURAL BACKGROUND

Raniel Perez Zayas is a Cuban citizen who was paroled into the United States in 1966 at the age of two, pursuant to § 212(d)(5) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(d)(5).¹ In 1974 he acquired permanent resident status retroactive to 1969. On March 23, 1990, Zayas was convicted in New York State Supreme Court, Queens County, of two felony offenses: attempted robbery in the second degree and criminal sale of cocaine in the fifth degree. He was sentenced to a prison term of one and one-third years to four years.

As a consequence of the conviction for the sale of cocaine, Zayas was ordered on January 22, 1991 by the Immigration and Naturalization Service ("INS") to show cause why he should not be deported. On January 10, 1992, he filed an application for relief under § 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed effective April 1, 1997). Section 212(c) authorized the Attorney General to admit, in his or her discretion, an otherwise deportable alien who had established lawful domicile in the United States for seven or more years. Such relief was unavailable under the statute if the alien had committed two or more crimes of moral turpitude; aliens who were faced with deportation solely on account of having committed a drug offense were eligible for relief.²

Zayas's deportation hearing was scheduled for April 26, 1994; however, due to an intervening arrest and conviction on February 15, 1994 for attempted robbery in the second degree, his immigration case was administratively closed pending his release from state custody. The hearing was rescheduled and held on January 16, 1997.

At the hearing, Zayas conceded the truth of all the allegations contained in the order to show cause, and again applied to the Immigration Judge ("IJ") for waiver of inadmissibility under § 212(c). A few months earlier, Congress had enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Section 440(d) of AEDPA amended § 212(c) of the INA so as to render ineligible for discretionary relief an alien who had been convicted of various drug offenses, including the one for which Zayas had been adjudged guilty in 1990. In his January 16, 1997 decision, the IJ denied Zayas's application for § 212(c) relief and ordered Zayas deported to Cuba.

The deadline for seeking Board of Immigration Appeals ("BIA") review of the IJ's deportation order was February 18, 1997. Zayas — detained and acting pro se — drafted a "perfected appeal" challenging the IJ's decision. With respect to the § 212(c) issue he wrote:

A.) My case and my petition for 212-c Waiver "preceeds" the new laws....

B.) At this time, my Waiver for 212-c is pending and I made this fact known to the Immigration Judge....

The language describing who may be eligible for 212-c Waiver states that a "permanent resident" (or green card holder) who has been in the U.S. for at least seven years at the time of filing must be considered. 8 C.F.R. Section 212(f)(2).... When the description given is held in comparison to the circumstances of my case then, there can be no question that I am a suitable candidate for some form of 212 Waiver.

I must reiterate that I already have an application for 212-c pending with the I.N.S. and this information alone should have resulted in the Immigration Judge staying and or postponing any further action on my case until such time that as a final disposition regarding my 212-c Waiver is handed down.

The United States Constitution promises under the Fourteenth (14) Amendment which in fact guarantees "equal protection" to aliens and citizens alike.... Not only has the spirit of the 14th Amendment been broken but, in the partial manner in which the Judge decided this, the actual letter of the law is being blatantly broken as well....

Furthermore, I file[d] an "order to show cause" and the accompanying 212-c Waiver on the INS and the Attorney General's Office dated 1991, and[there] has been no disposition as of yet.... Both the show cause and the 212-c Waiver were file[d] years before any of the recent changes in the INA Law went into effect.

According to Zayas, he mailed his notice of appeal from prison on February 16, 1997, two days before the February 18 filing deadline; however, Zayas's appeal was not received by the BIA until February 24. The BIA dismissed the appeal as untimely on April 16, 1997.³

Subsequent to the BIA's dismissal of his appeal, Zayas filed a series of habeas corpus petitions. Acting pro se, Zayas filed two habeas petitions in the District Court for the Eastern District of Pennsylvania.

In the first petition, filed on June 15, 1998, Zayas argued that his indefinite detention pending deportation was unlawful. In a Report and Recommendation, Magistrate Judge Rapoport found Zayas to be "in error regarding the applicable law," and recommended that the petition be "DENIED AND DISMISSED." Judge Reed approved and adopted the Report and Recommendation on October 6, 1998.

Zayas's second habeas petition was filed on June 30, 1999. Magistrate Judge Rapoport filed a Report and Recommendation in which he found that Zayas had raised essentially the same issues as he had in the first petition, and that Zayas's petition should therefore be dismissed. Again Judge Reed adopted the Report and Recommendation and dismissed the second habeas petition on August 11, 1999.

Meanwhile, on July 26, 1999, Zayas had filed with this court a petition styled "Motion for Review." In this submission, Zayas asked this court to review a decision by the INS District Director denying Zayas's release from detention.⁴ The INS subsequently moved to dismiss the "Motion for Review." On March 3, 2000, this court denied the motion to dismiss and ordered that the "Motion for Review" and an accompanying motion for appointment of counsel be transferred to the District Court for the Middle District of Pennsylvania (the district in which Zayas was in custody), instructing that the matter "be treated as a petition for habeas corpus under 28 U.S.C. § 2241."

The grievance that Zayas had pressed in his first two habeas petitions — to wit, his claim that his indefinite detention was unlawful — was resolved on June 30, 2000, when he was released from INS custody on bond pending his removal to Cuba. Upon his release, Zayas moved to dismiss the habeas petition that had its genesis as a "Motion for Review," and which was by that time pending in the Middle District. The District Court granted Zayas's motion and dismissed the petition on July 12, 2000.

On July 27, 1999 — one day after filing in this court the "Motion for Review" challenging his continued detention, but several months before the "Motion for Review" was transferred by this court to the Middle District — Zayas filed in the Middle District a new habeas petition under § 2241. In this petition, Zayas did not raise the indefinite detention issue which he had sought to present in the two Eastern District habeas petitions and which, in a later context, was the subject of the "Motion for Review." Instead, he sought "judiciary review, based on a determination that he is eligible for relief from deportation under section 212(c) of the Immigration and Nationality Act" — a reprise of the issue Zayas had attempted to present in the appeal dismissed by the BIA as untimely. In his Report and Recommendation, Magistrate Judge Durkin concluded that the new § 2241 petition should be dismissed on two alternative grounds.

First, he found Zayas's petition to be a second or successive petition which can only be filed in a district court if the court of appeals has granted permission for such filing. In his Report and Recommendation, Magistrate Judge Durkin summarized the process as follows:

[P]ursuant to 28 U.S.C. § 2244(b)(3)(A), prior to filing a second or successive petition, a petitioner must move in the appropriate court of appeals for an order authorizing the district court to consider the application. Pursuant to § 2244(b)(2), in order for the court of appeals to grant such an application, it must find that the claim presented in the second or successive petition relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, or that the factual predicate for the claim could not have been discovered previously through the exercise of due diligence and that the facts underlying the claim, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no...