Zgombic v. Farquharson
| Decision Date | 22 March 2000 |
| Docket Number | No. CIV.A.3:99 CV 2571(SRU) DW.,CIV.A.3:99 CV 2571(SRU) DW. |
| Court | U.S. District Court — District of Connecticut |
| Parties | Ana ZGOMBIC a/k/a Ana Reynolds A30 211 823, Petitioner, v. Steven J. FARQUHARSON, et al., Respondents. |
Jonathan E. Avirom, Protima Daryanani, Avirom & Associates, LLP, New York City, for Petitioner.
Deborah Slater, U.S. Attorney's Office, Hartford, CT, Hugh Mullane, U.S. Department of Justice, Office of Immigration Litigation, for Respondents.
The petitioner, Ana Zgombic, a/k/a Ana Reynolds ("Zgombic" or "petitioner"), has been a lawful permanent resident of the United States for almost thirty years. The Immigration and Naturalization Service ("INS") has instituted removal proceedings against Zgombic, and has charged her with deportability as an aggravated felon. Petitioner is currently being detained without the possibility of bond subject to the Immigration and Nationality Act ("INA"). Zgombic filed a petition for habeas corpus relief, pursuant to 28 U.S.C. § 2241, arguing that the mandatory detention provision of the INA is either being misapplied to her or violates her substantive and procedural due process rights under the Fifth Amendment to the U.S. Constitution. The respondents, Steven J. Farquharson, District Director of the INS, and Janet Reno, Attorney General of the United States (collectively, the "government"), moved to dismiss the petition for failure to state a claim for relief. For the reasons discussed below, Zgombic's writ of habeas corpus (doc. # 1) is GRANTED and the government's motion to dismiss (doc. # 5) is DENIED.
Zgombic is a 37 year-old, native of Yugoslavia and presumed citizen of Croatia1 who has been a lawful permanent resident ("LPR") of the United States since 1972. In 1986, Zgombic married Edward Reynolds, a United States citizen. Prior to being taken into custody, Zgombic resided with her husband in Great Neck, New York.
In September 1995, Zgombic left the United States on a nine-month business trip to China. Zgombic returned to the United States on June 6, 1996. Upon her return, a computer records check by the INS discovered an outstanding warrant for her arrest in the Southern District of New York. The warrant involved allegedly fraudulent bank transactions executed by Zgombic between February 1992 and June 1992. As a result of the warrant, Zgombic was "paroled" into the country and remanded to the custody of federal authorities. She was later released on bail by a Magistrate Judge.
On October 7, 1997, five years after the alleged criminal conduct and more than a year since her return to the United States, a six-count criminal indictment was filed in the Southern District of New York charging Zgombic with bank fraud. Court Ex. 1. On July 15, 1998, Zgombic pled guilty to three counts of bank fraud under 18 U.S.C. § 1344. Mem. of Law in Supp. of Respondents' Mot. to Dismiss, Gov't Ex. 1 ("Respondents' Mem."). Zgombic was sentenced to 15 months of imprisonment beginning on August 10, 1998. Id. On February 11, 1999, the INS terminated Zgombic's parole status and issued a Notice to Appear charging that she was inadmissible pursuant to section 212(a)(2)(A)(i) of the INA, 8 U.S.C. § 1182(a)(2)(A)(i), due to her conviction in 1998. Verified Pet. for a Writ of Habeas Corpus and Compl. for Declaratory and Injunctive Relief, Ex. B ("Verified Compl.").
On August 26, 1999, the INS issued a Notice of Custody Determination, finding that pursuant to INA section 236(c), Zgombic must be detained in the custody of the INS upon her release from federal criminal custody and could not request a review of her detention by an immigration judge because the INA prohibits her release from custody. Id. at Ex. A. On October 20, 1999, an immigration judge found that Zgombic was
a lawful permanent resident alien, who would not normally be considered as an "arriving alien." However, [Zgombic] is within one of the provisions of section 101(a)(13)(A) of the Act, which requires that even a LPR returning to the United States may be considered to be an "arriving alien", such as where there [sic] LPR has committed an offense identified in section 212(a)(2) of the Act. The Court is satisfied that the respondent has been convicted of such a crime, as established by the record in the custody hearing. Therefore, the Court lacks jurisdiction to redetermine the respondent's custody status.
Id. at Ex. D. Also on October 20, 1999, the immigration judge ordered Zgombic removed to Croatia, denied her application for cancellation of removal under Section 240A(a) as pretermitted, ruled that her application for a waiver under Sections 212(c) and (h) were pretermitted, and denied her application for termination.2 Id. at Ex. C. Both the custody determination and the removal order are currently on appeal before the Board of Immigration Appeals.
Before addressing the arguments presented in this case, it would be helpful to review the statutory framework regarding removal, discretionary waiver, and detention of individuals such as petitioner and the significant changes to the INA's removal, discretionary waiver, and detention provisions that resulted from the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") (collectively, the "1996 amendments").
Prior to the 1996 amendments to the INA, an alien who faced deportation due to a criminal conviction could request discretionary relief from deportation pursuant to INA § 212(c). See 8 U.S.C. § 1182(c) (repealed). If that request was denied, an alien could seek review in the court of appeals, see 8 U.S.C. § 1105(a) (repealed), or could petition for a writ of habeas corpus pursuant to either the INA, see 8 U.S.C. § 1105(a)(10) (repealed), or the general habeas statute. See 28 U.S.C. § 2241.
Effective April 24, 1996, AEDPA expanded the list of criminal offenses ("aggravated felonies") that could render an alien deportable. In addition, section 440(d) of the statute barred INA section 212(c) relief for persons subject to deportation for having committed certain criminal offenses. The statute specified that its changes applied to all deportation proceedings initiated after April 24, 1996. AEDPA also specified that the expanded definition of aggravated felony would apply "to convictions entered on or after the date of the enactment of this Act." Id. § 440(f). Finally, the Act specified that discretionary waivers would no longer be available for those aliens deportable by reason of having committed, inter alia, an aggravated felony. See AEDPA § 440(c) ( old INA § 212(c),3 8 U.S.C. § 1182(c)).
This statutory scheme was short-lived; Congress amended it on September 30, 1996, with the passage of IIRIRA. IIRIRA repealed section 212(c) relief entirely and replaced it with a new type of relief labeled "cancellation of removal." IIRIRA § 304(a), new INA § 240A, 8 U.S.C. § 1229b. This provision authorizes the Attorney General to cancel removal ("removal" now encompassing both deportation and exclusion proceedings) for any alien who has: (1) enjoyed permanent resident status for at least five years; (2) continuously resided in the United States for seven years; and (3) not committed an aggravated felony. See id. (emphasis added). As the foregoing discussion illustrates, with an expanded definition of "aggravated felony," the consequences of being labeled an "aggravated felon" were greatly enhanced due to the new restrictions on discretionary relief from removal.4
The instant case raises an issue not yet addressed by the Court of Appeals for the Second Circuit, namely, whether a petitioner whose criminal conduct pre-dates the enactment of AEDPA and IIRIRA is eligible for section 212(c) relief or whether the provisions amending section 212(c) relief and ultimately eliminating it altogether should be applied retroactively.
Under the Immigration and Nationality Act of 1952, the Attorney General had the discretion to release an alien pending a final determination of deportability. The INA provided that:
Any such alien taken into custody may, in the discretion of the Attorney General and pending such final determination of deportability, (1) be continued in custody; or (2) be released under bond in the amount of not less than $500 with security approved by the Attorney General, containing such conditions as the Attorney General may prescribe; or (3) be released on conditional parole.
8 U.S.C. § 1252(a) (1970).
In 1988, in response to concerns about increased criminal activity by aliens, Congress passed an omnibus drug enforcement bill known as the Anti-Drug Abuse Act ("ADAA"), which amended the INA and added, inter alia, a mandatory detention provision for certain aliens removable for having committed a finite list of crimes. As amended by the ADAA, the INA provided that 8 U.S.C. § 1252(a)(2) (1990), INA § 242(a)(2).
Upon review, numerous courts found this mandatory detention provision to be unconstitutional as a violation of due process protection. See, e.g., Paxton v. United States, 745 F.Supp. 1261, 1265-66 (E.D.Mich.1990); Leader v. Blackman, 744 F.Supp. 500, 507-09 (S.D.N.Y.1990); Kellman v. INS, 750 F.Supp. 625, 628 (S.D.N.Y.1990); Probert v. INS, 750 F.Supp. 252, 257 (E.D.Mich.1990), aff'd on other grounds, 954 F.2d 1253 (6th Cir. 1992); Agunobi v. Thornburgh, 745 F.Supp. 533, 538 (N.D.Ill.1990); but see Davis v. Weiss, 749 F.Supp. 47, 50, 52 (D.Conn.1990); Morrobel v. Thornburgh, 744 F.Supp. 725, 728 (E.D.Va...
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