Drax v. RenoDrax v. Reno
BRYAN LONEGAN (Janet Sabel, Scott Rosenberg, Helaine Barnett, of counsel), The Legal Aid Society, Brooklyn, NY, for Petitioner-Appellee.
JOSE A. CABRANES, Circuit Judge.
This case vividly illustrates the labyrinthine character of modern immigration law—a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike. The inscrutability of the current immigration law system, and the interplay of the numerous amendments and alterations to that system by Congress during the pendency of this case, have spawned years of litigation, generated two separate opinions by the District Court, and consumed significant resources of this Court. With regret and astonishment, we determine, as explained more fully below, that this case still cannot be decided definitively but must be remanded to the District Court, and then to the Board of Immigration Appeals (“BIA“), for further proceedings.
The principal questions presented on appeal are: (i) whether the
On the first issue, the District Court held that
On the second issue, the District Court held that because the petitioner‘s chance of success under the Gabryelsky process was too attenuated, the Immigration Judge did not err in failing to recognize that Gabryelsky relief was possible. We hold that the petitioner had a reasonable likelihood of success under the Gabryelsky process and that, in the circumstances here presented, the Immigration Judge erred by failing to recognize the availability of such relief.
Accordingly, we affirm on alternative grounds the judgment of the District Court granting the writ of habeas corpus. We remand to the District Court with instructions to remand the cause to the BIA to аllow the petitioner to pursue Gabryelsky relief.
BACKGROUND
The facts relevant to this appeal are set forth below, as well as in the District Court‘s opinion in Drax v. Reno, 2001 WL 1180678, No. 99 CV 3613 (E.D.N.Y. Oct. 3, 2001) (”Drax I“),1 and its superseding opinion in Drax v. Ashcroft, 178 F.Supp.2d 296 (E.D.N.Y.2001) (”Drax II“).
I. Drax‘s Convictions
Drax, a citizen of Trinidad and Tobago, entered the United States twenty-seven years ago, at age fifteen. He obtained lawful permanent resident status in 1984 at age twenty-three. He was married to a lawful permanent resident from 1981 until her death in 1994, and he married a United States citizen in April 2000. His father and siblings are naturalized United States citizens.
Drax pleaded guilty in New York State Supreme Court, Kings County, on May 26, 1993, to attempted criminal possession of a firearm in the second degree, a class C felony. He also pleaded guilty in that Court on April 12, 1996, to sale of a controlled substance in the fifth degree, a class D felony. Drax was sentenced simultaneously in April 1996 to concurrent terms of incarceration of one-to-three years for the weapons charge and two-to-four years for the drug charge.
At the time of Drax‘s drug and attempted weapons convictions, he was eligible for discretionary relief from depоrtation for his drug offense pursuant to
In 1994, however, Congress enacted the
For his attempted weapons conviction, Drax may nonetheless apply for a form of relief called “adjustment of status,” in which a deportable alien‘s status is adjusted, pursuant to
Adjustment of status, however, is not available for Drax‘s drug conviction. See Jenkins v. INS, 32 F.3d 11, 15 (2d Cir. 1994) (holding that an alien with a drug conviction is “barred from adjusting his status to that of a lawful permanent resident under
In INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Supreme Court, affirming this Court‘s decision in the same case, 229 F.3d 406 (2d Cir.2000), held that certain 1996 changes to the immigration laws that would significantly alter the above analysis do not apply retroactively to petitioners such as Drax who pleaded guilty prior to the effective date of the changes. See St. Cyr, 533 U.S. at 326. In particular, the Supreme Court held that Congress‘s April 24, 1996 enactment of
In January 1997, the Immigration and Naturalization Service (“INS“)4 commenced deportation proceedings against Drax by Order to Show Cause. In July 1997, Drax appeared pro se before an Immigration Judge, admitted his two convictions, and was found deportable. Drax I, at 4. At this appearance, Drax asked the Immigration Judge if he was “qualified for any type of a waiver” of deportation. Id.
The Immigration Judge, ruling several years prior to our decision or the Supreme Court‘s decision in St. Cyr, erroneously informed Drax that no relief from deportation was available to him under
On March 1, 1998, Drax, still acting pro se, filed an appeal with the BIA, which the BIA rejected as untimely.6 In July 1998, The Legal Aid Society of New York entered the case as counsel for petitioner and obtained permission to file a late appeal to the BIA. In that appeal, counsel for Drax argued that
On May 28, 1999, the BIA dismissed Drax‘s appeal pursuant to the Attorney General‘s opinion in Matter of Soriano, 21 I. & N. Dec. 516, 533 (Op. Att‘y Gen. Feb. 21, 1997), which had held — contrary to our later holding and the Supreme Court‘s later holding in St. Cyr — that
IV. Habeas Corpus Proceedings in the District Court
On June 24, 1999, Drax, still represented by counsel, filed a petition in the District Court for a writ of habeas corpus. In his petition, he claimed that he should be permitted tо apply to an Immigration Judge for
Drax‘s counsel responded by a letter submitted in July 1999, in which he asserted for the first time that, should Drax prevail regarding the nonretroactivity of
On the merits, the District Court concluded that Drax remained eligible to apply for
On October 18, 2001, the Government filed a motion pursuant to
On November 14, 2001, the District Court issued a second opinion, Drax II, 178 F.Supp.2d 296 (E.D.N.Y.2001), in which it adopted the Government‘s arguments. The District Court held that Drax did not qualify for Gabryelsky relief because he “[did] not meet the requirement of an immediately available visa.” Id. at 298-99. The Court further concluded that no visa ever was “immediately available” to Drax at any relevant time, and that any prospect of eligibility for Gabryelsky relief in the future was “too attenuated.” Id. at 306-07. Because Drax failed to meet the independent requirements of
However, the District Court granted a writ of habeas corpus on different grounds by sua sponte identifying a new argument favorable to Drax — that Drax‘s attempted weapons conviction did not render him deportable and, therefore, Drax could seek relief from deportation solely by applying for
V. Claims on Appeal
The Government timely appealed the District Court‘s judgment entered on the basis of Drax II, arguing that the District Court erred in holding that
Drax did not cross-appeal the District Court‘s denial of his claim for Gabryelsky relief. He did, however, renew his argument that he is eligible for Gabryelsky relief in his opposition to the Government‘s arguments. We hold that Drax‘s renewal of his Gabryelsky claim in his appellate brief is sufficient for us to consider the claim. An “appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.” International Ore & Fertilizer Corp. v. SGS Control Servs., Inc., 38 F.3d 1279, 1285 (2d Cir. 1994) (citation and internal quotation marks omitted).11 Appellee in this case does not seek to “enlarg[e] his own rights,” under the appeal, but seeks merely “to sustain a judgment on ... grounds with support in the record,” id. — grounds that were the basis of District Court‘s opinion granting relief in Drax I, which was later rescinded upon reconsideration in Drax II. See Arlinghaus v. Ritenour, 622 F.2d 629, 638 (2d Cir.1980) (“[T]he judgment of a lower court may be affirmed without cross-appeal on the basis of any argument that is supported by the record, whether it was ignored by the court below or flatly rejected.” (citation and internal quotation marks omitted)). Drax‘s claim is not an impermissible claim for “supplement[al]” relief, see Beharry v. Ashcroft, 329 F.3d 51, 63 (2d Cir.2003), but rather a claim that is inextricably intertwined with the relief ultimately granted by the District Court.12
Accordingly, on appeal we consider: (1) the Government‘s argument that the District Court‘s grant of relief was improper because the
DISCUSSION
I. Standard of Review
“[We] review[] a district court‘s grant of a writ of habeas corpus de novo and the factual findings supporting the grant for clear error.” Theodoropoulos v. INS, 313 F.3d 732, 736 (2d Cir.2002).
II. The Government‘s Retroactivity Claim
In Drax II, the District Court held that
A. Section 212(c) relief
Prior to its partial repeal by AEDPA, and subsequent complete repeal by IIRIRA,
Former
In Francis v. INS, 532 F.2d 268 (2d Cir.1976), we extended
In Bedoya-Valencia we recognized an additional category of eligibility for
Thus, as we later summarized in Cato, an alien subject to deportation under
- The deportee‘s ground of deportation [is] congruent with a ground of exclusion listed in
§ 212(a) . Such a deportee is eligible for§ 212(c) relief. The deportee‘s ground of deportation [is] one that could not possibly be analogous to a ground of exclusion. Such a deportee is also eligible for § 212(c) relief.- The deportee‘s ground of deportation [is] one that could conceivably have an analogous ground of exclusion under
§ 212(a) but ... Congress has not chosen to include that ground in§ 212(a) . Such a deportee is not eligible for§ 212(c) relief.
Cato, 84 F.3d at 600 (emphases added).
At the time of Drax‘s plea on his drug charge, his conviction fell into the first category — i.e., a ground of deportation that is congruent with a ground of exclusion listed in
At the time of Drax‘s plea on his attempted weapons charge, such an offense did not render him deportable under
B. Retroactivity of the INTCA
In 1994, Congress enacted the
Accordingly, if
Unlike the provision of IIRIRA at issue in Kuhali, however, the
The word “technical” failing to create any meaningful distinction between the language of retroactivity used in
* * * * * *
III. Petitioner‘s Gabryelsky Claim
We now turn to Drax‘s claim that the Immigration Judge at his immigration hearing erred by holding that, pursuant to
Relying on INS regulations in force,18 the BIA in Matter of Gabryelsky, 20 I. & N. Dec. 750 (B.I.A. 1993), held that an alien such as Drax who:
- on his drug conviction, is eligible for
§ 212(c) relief from deportation but ineligible for§ 245(a) adjustment of status; yet - on his weapons conviction, is eligible for
§ 245(a) adjustment of status but ineligible for§ 212(c) relief from deportation,
can simultaneously apply for both forms of relief. Gabryelsky, 20 I. & N. Dec. at 756. Gabryelsky relief operates under the legal fiction that the
As the District Court noted, the “[t]he Gabryelsky method has been adopted by the BIA, and endorsed by the Courts.” Drax II, 178 F.Supp.2d at 305 (citing, inter alia, Snajder v. I.N.S., 29 F.3d 1203, 1208 (7th Cir.1994); Rivera-Saavedra v. Demore, No. C00-00464CRB, 2001 WL 1006819, at *1-2 (N.D.Cal. Aug. 24, 2001); Cinquemani v. Ashcroft, No. 00-CV-1460 (RJD), 2001 WL 939664, at *5 (E.D.N.Y. Aug. 16, 2001); Calderon v. Reno, 39 F.Supp.2d 943, 946 & n. 7 (N.D.Ill.1998); In re Rodarte-Espinoza, 21 I. & N. Dec. 150, 151-52 (B.I.A.1995)); see also United States v. Gonzalez-Roque, 301 F.3d 39, 42 (2d Cir.2002) (citing Gabryelsky, without discussing ”Gabryelsky relief“). We agree that the Gabryelsky process is a viable method of seeking discretionary relief from deportation in this Cirсuit.
Under Gabryelsky, in order to have been eligible to apply for relief before the Immigration Judge, Drax had to be simultaneously eligible to apply for both: (i)
A. § 212(c) relief for Drax‘s drug charge
We hold that
On April 24, 1996, Congress enacted AEDPA, of which
If the stringent standards of AEDPA and IIRIRA were applied retroactively in this case, they would clearly bar any possibility of
We reject this argument for two reasons. First, it conflates the independent disadvantages that resulting from each of Drax‘s two convictions. It is not the case that Drax, at the time of his plea, was ineligible to apply for
Thus, because the enactment of AEDPA and IIRIRA had no effect on Drax‘s continued eligibility for
B. § 245(a) adjustment of status for Drax‘s attempted weapons charge
1. The adjustment of status regime
“Adjustment of status” is a form of relief that allows a deportable alien who would be admissible to the United States if he were seeking to enter the country to adjust his status to that of an alien seeking entry.
It is clear (i) that Drax is not eligible for an adjustment of status under
Compliance with the statute‘s first and third requirements requires an alien to undertake a two-step process. First, either the alien or a family relative must file a petition for an immigrant visa, so that at some point in the future such a visa may become “immediately available” to the alien.
An alien who, like Drax (the then-unmarried son of a United States citizen), seeks to obtain an immigrant visa on the basis of a familial relationship must cause the relevant family member to file an I-130 visa petition, or “Petition for Alien Relative,” on his behalf.
The processing time for approval of an I-130 petition varies depending on whether an alien is involved in deportation proceedings. For aliens subject to deportation proceedings, the Government informs us that I-130 petitions are frequently processed in an expedited manner that takes between sixty days and six months, although processing sometimes takes longer. MacPherson Aff. of 6/12/03 ¶ 5. For aliens not subject to deportation proceedings, the Government informs us that processing of I-130 petitions currently takes between eight and fifty-two months. Laramie Aff. of 6/18/03 ¶ 4. When the INS approves an I-130 petition, the petition is forwarded to the National Visa Center for further processing, and a notice of approval is sent to the alien.
Once an alien‘s I-130 petition has been approved by the INS, an alien must still wait until a visa is “immediately available” in order to file his I-485 application.
2. Drax‘s eligibility for adjustment of status
In Drax I, the District Court erroneously relied solely upon Drax‘s father‘s filing of an I-130 petition in October 1998 to conclude that Drax had a visa “immediately available,” and was thus immediately eligiblе for an adjustment of status and, hence, Gabryelsky relief. Drax I, at 17-19, 20-23. The Court mistakenly believed (i) that the filing of an I-130 petition was sufficient to constitute “an application for adjustment,” as required by
After the Government filed its Rule 59(e) motion, the District Court in Drax II reconsidered its ruling and concluded that “a visa was not available to petitioner at any time before his case was closed” and that the Immigration Judge‘s statement “`you are not eligible for any kind of relief’ was not a misstatement given that Mr. Drax was not prima facie eligible for [adjustment of status or] Gabryelsky relief” at that time. Drax II, 178 F.Supp.2d at 307. The Court rejected Drax‘s argument that the Immigration Judge could have granted him a continuance to pursue an adjustment of status because it found the argument to be “a rather remote possibility” that was “too attenuated for it to be the basis for a successful habeas corpus petition.” Id.
We agree with the District Court‘s determination that Drax was not at any relevant time eligible for an adjustment of status or Gabryelsky relief. Drax‘s father first filed an I-130 petition in October 1998. The record is unclear as to whether that petition was ever approved, but assuming, arguendo, that it was approved in a relatively short period of time (e.g., two to six months), at no point during the course of his deportation proceedings did a visa ever become “immediately available.” An examination of the relevant visa bulletins shows that a visa was not available until February 2000 for any first-preference I-130 petition with a priority date of October 1998.
3. Drax‘s potential eligibility for adjustment of status
We cannot, however, agree with the District Court‘s conclusion that the Immigratiоn Judge‘s error of law was harmless because the possibility of Gabryelsky relief in the near future was “too attenuated for it to be the basis for a successful habeas corpus petition.” Drax II, 178 F.Supp.2d at 307. We believe that Gabryelsky relief was a reasonable possibility if the Immigration Judge had recognized that
At petitioner‘s immigration hearing on July 2, 1997, Drax (then proceeding pro se) asked, “[A]m I qualified for any type of a waiver?” After reviewing Drax‘s file and noting that he was the son of a naturalized American citizen and had been convicted of both a drug offense and a weapons offense, the Immigration Judge stated as follows during a colloquy with the petitioner:
IJ: I told you there is no relief available for you. And, I want you to understand one simple thing about that. That means when the, when the Congress says that a person is convicted of selling drugs can‘t stay there. It means the Judge‘s discretion or his decision making powers is taken away from him. I don‘t have any discretion in your case. Thаt‘s why I‘m not listening and considering all those things that you told me already. I did listen, you know I listened. I heard you. I heard every word of it. But, I can‘t consider it to help you because you are legally barred by the laws of the Congress from staying here in this country. . . .
IJ: Okay. I‘m going to — as I said, there is no relief available to you. I‘m going to outline every one of them for you that I know of. . . .
IJ: You‘re not eligible for a 212(c) because it‘s been taken away. You have an aggravated felony drug sale. You‘re not eligible for an adjustment of status. You never were eligible for an adjustment of status because adjustment will not waive a drug offense. And, it never did. So you‘re not eligible for that. . . .
Tr. of 7/2/97 at 18-19.
As discussed in the preceding sections, the Immigration Judge‘s conclusion was incorrect because, contrary to what he believed,
With the benefit of a favorable exercise of the Immigration Judge‘s discretion, Drax could indeed have become eligible for an adjustment of status and Gabryelsky relief. To allow Drax to pursue an adjustment of status, the Immigration Judge could have (i) informed Drax of the availability of an adjustment of status, (ii) instructed Drax to have a relative file an I-130 form on his behalf, and (iii) granted a continuance for a reasonable amount of time to enable Drax to obtain a visa. Had the Immigration Judge given Drax such instructions at his July 2, 1997 hearing, and if Drax‘s father had thereupon promptly filed an I-130 petition, the petition would have had a priority date in July 1997. Assuming that it would have taken the INS less than 15 months to approve the petition (a realistic assumption, see Discussion, section III.B.1, ante), аn immigrant visa would have become “immediately available” to Drax in October of 1998. See
Furthermore, even if the Immigration Judge had recognized the nonretroactivity of AEDPA
It is clear in this case that the Immigration Judge had the discretion to craft relief that would have prevented Drax from being deported. However, because of an error of law, the Immigration Judge believed that he lacked such discretion, and Drax was thus precluded from seeking Gabryelsky relief. We have frequently held in the sentencing context that a failure to exercise discretion, where a judge mistakenly believes that he lacks the authority to exercise discretion, warrants a remand for resentencing. See, e.g., United States v. Ventrilla, 233 F.3d 166, 169 (2d Cir.2000); United States v. Thorpe, 191 F.3d 339, 342-43 (2d Cir.1999) (collecting cases); see also St. Cyr, 533 U.S. at 308, 121 S.Ct. 2271 (holding that it is historically appropriate, on habeas review, to correct a failure to exercise discretion, even where it is not clear that such discretion would have been exercised favorably). We hold that the Immigration Judge‘s failure to exercise his discretion in the mistaken belief that he lacked the authority to do so was prejudicial error.27
The Immigration Judge‘s error of law with respect to the retroactivity of AEDPA
C. Remedy
We instruct the BIA on remand to permit the petitioner to pursue Gabryelsky relief by allowing Drax to make a renewed application to adjust his status pursuant to
CONCLUSION
For the reasons stated above, and with an appreciation of the extraordinary effort invested in this case by both the Immigration Judge and the District Court, the judgment of the District Court granting Drax‘s petition for a writ of habeas corpus is AFFIRMED, as modified (i) to preclude
Notes
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 without regard to the provisions of subsection (a) of this section [listing grounds for exclusion].... The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.
The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
(a) CONFORMING GROUNDS FOR EXCLUSION FOR CERTAIN FIREARMS OFFENSES. — Section 212(a)(2)(C) (
8 U.S.C. 1182(a)(2)(C) ) is amended by inserting “or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry” after “of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying“.(b) CONFORMING GROUNDS FOR DEPORTATION FOR CERTAIN FIREARMS OFFENSES. — Section 241(a)(2)(C) (
8 U.S.C. 1251(a)(2)(C) ) is amended by inserting “or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry” after “of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying“.(c) EFFECTIVE DATE. — The amendments made by this section shall apply to convictions occurring before, on, or after the date of the еnactment of this Act.