Khan v. AshcroftKhan v. Ashcroft
KRISTEN CHAPMAN, Assistant United States Attorney, Brooklyn, New York (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Varuni Nelson, Assistant United States Attorney, Brooklyn, New York, on the brief), for Respondents-Appellees.
Before: FEINBERG, KEARSE, and RAGGI, Circuit Judges.
KEARSE, Circuit Judge.
Petitioner Fazila Khan appeals from a judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Chief Judge, dismissing her petition for a writ of habeas corpus challenging thе constitutionality of
In November 1996, Khan, a citizen of Guyana who had been admitted to the United States as a permanent resident alien, pleaded guilty to using a telephone to facilitate the distribution of heroin, in violation of
Khan‘s present habeas petition asserted, and she argues on this appeal, that AEDPA‘s prohibition against discretionary relief under former
In Domond, this Court held that the application of
Khan contends that the Supreme Court decision in St. Cyr II implicitly overruled our decision in Domond. We disagree. In St. Cyr II, which affirmed this Court‘s decision in St. Cyr I, the alien whose conduct constituted an aggravated felony had entered his plea оf guilty prior to the enactment of AEDPA and IIRIRA. In St. Cyr I, we therefore concluded that the application of
We see nothing in St. Cyr II that detracts from the result or reasoning of Domond. This Court‘s decision in St. Cyr I had been issued shortly before the oral argument in Domond, and in deciding the latter case, we noted the difference in the timing of the aliens’ guilty pleas in the two cases. We expressly applied the principle noted in St. Cyr I, i.e., that “‘[i]t is the conviction, not the underlying criminal act, that triggers the disqualification from § 212(c) relief,‘” Domond, 244 F.3d at 85-86 (quoting St. Cyr I, 229 F.3d at 418) (other internal quotation marks omitted). But whereas in St. Cyr I, the alien‘s plea of guilty prior to the passage of
In sum, the same considerations and principle that led us to reach a different decision in Domond than we had reached in St. Cyr I lead us to conclude that Domond remains good law in the wake of the Supreme Court‘s decision in St. Cyr II. Given that St. Cyr II, like Domond, evaluated aliens’ expeсtations in light of “the time of their plea under the law then in effect,” 533 U.S. at 326, 121 S.Ct. 2271, we see no basis for concluding that St. Cyr II overruled Domond.
Indeed, this Court has repeatedly followed Domond in the wake of St. Cyr II. See, e.g., Beharry v. Ashcroft, 329 F.3d 51, 63 (2d Cir.2003) (noting that even if the petitioner had properly exhausted his administrative remedies, we would affirm the denial of his habeas petitiоn on the basis of Domond, as ”Domond remains good law“); Mohammed, 309 F.3d at 102-03.
In Mohammed, we expressly explored “the continued validity, in light of ... St. Cyr [II], 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347, ... of our decision in Domond.” Mohammed, 309 F.3d at 97. We observed that Domond had
explicitly noted the Supreme Court‘s instruction in Landgraf that “‘reasonable reliance‘” and “‘settled expectations‘” provide “guidance in determining retroactive effeсt,” Domond, 244 F.3d at 85 (quoting Landgraf, 511 U.S. at 270, 114 S.Ct. 1483, 128 L.Ed.2d 229), and concluded, as we had previously observed in St. Cyr [I], 229 F.3d 406 (2d Cir.2000), aff‘d, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), that “‘[i]t would border on the absurd‘” to suppose that an alien might have been deterred from committing a crime had he known that, in addition to the prospect of imprisonment and deportation fоllowing release, he could not ask for discretionary relief from deportation. Domond, 244 F.3d at 84 (quoting St. Cyr [I], 229 F.3d at 418).
Mohammed, 309 F.3d at 102. We noted that the Supreme Court in St. Cyr II simply affirmed our ruling in St. Cyr I that aliens who pleaded guilty prior to the effective date of AEDPA had reasonable expectаtions with respect to continued eligibility for discretionary § 212(c) relief, and that the St. Cyr II Court had not disturbed Domond‘s holding that those were expectations that could not reasonably be shared by aliens who pleaded guilty after AEDPA became effective. See Mohammed, 309 F.3d at 102-03.
Accordingly, in Mohammed, we lifted a stay of removal that had been granted on the premise that the elimination of § 212(c) discretionary relief for aggravated felons had an impermissibly retroactive effect on an alien whose plea of guilty to an aggravated felony was entered after the effective date of AEDPA, because we concluded that, in light of the continued vitality of Domond, Mohammed had no substantial likelihood of success on appeal.
In the course of our discussion, we stated that “at least for purposes of considering the pending motion to lift the stay, ... Domond remains binding authority in this Circuit,” Mohammed, 309 F.3d at 103; and Khan contends that the words “at least for purposes of considering the pending motion to lift the stay” indicate that the Mohammed panel “did not intend for other courts to be bound by its decision” (Khan brief оn appeal at 13). We reject the contention that the Mohammed panel‘s view of Domond was somehow intended to be less than precedential. The question of Domond‘s continued validity was essential to an evaluation of Mоhammed‘s entitlement to a stay. We considered “the gravity of the injury to the alien if a stay is denied,” 309 F.3d at 102, and we ruled that in order to retain his stay, Mohammed need not show more than a 50 percent chance of success on appeal, see id. We concluded that he simply could not meet that standard in light of Domond. The reasoning in Mohammed, which reaffirmed the result and rationale of Domond in refusing to lift the stay of removal, is equally applicable in the instant case, where the сhallenge to a finding of ineligibility for § 212(c) relief is made in a petition for habeas corpus. Indeed, Mohammed has been relied on by this Court in addressing the merits of petitions for habeas corpus. See, e.g., Rankine v. Reno, 319 F.3d 93, 100-01 (2d Cir.) (noting that the impеrmissible retroactive effect of § 440(d) identified by the Supreme Court in St. Cyr II stemmed from “‘the alien‘s reliance on the prior availability of discretionary relief in deciding whether to plead guilty‘” (quoting Mohammed, 309 F.3d at 103)), cert. denied, ___ U.S. ___, 124 S.Ct. 287, 157 L.Ed.2d 199 (2003).
Finally, we note that in a number of appeals in which the appellants have made a retroactivity argument similar to Khan‘s, this Court has rejected the argument summarily on the basis of Domond. See, e.g., Carr v. Reno, No. 01-2270, 2002 WL 24144, 24 Fed.Appx. 99 (2d Cir. Jan.4, 2002) (affirming denial of habeas, citing Domond), reh‘g denied (2d Cir. Aug. 27, 2003); Hibbert v. Ashcroft, No. 02-2281, 2003 WL 21466746 67 Fed.Appx. 657 (2d Cir. June 20, 2003) (same). Although these summary affirmances are not themselves precedential authority, see Rules of the United States Court of Appeals for the Second Circuit, § 0.23, they clearly acknowledge the continued precedential effect of Domond.
In sum, our decision in Domond remains good law.
We have considered all of Khan‘s contentions on this appeal and have found them to be without merit. The judgment of the dis