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December 10, 2002


The opinion of the court was delivered by: Sylvia H. Rambo, United States District Judge


Before the court is Petitioner, Murali Ponnapula's, petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. Petitioner challenges the lawfulness of his final order of removal from the United States. Specifically, Petitioner (1) challenges the Immigration Court and Board of Immigration Appeals's retroactive application of the 1996 amendments to the Immigration and Nationality Act*fn1 ("INA"), (2) seeks a ruling declaring him eligible to seek relief from removal under former § 212(c) of the INA, see 8 U.S.C. § 1182(c) (1994)*fn2 (hereinafter, "former § 212(c)"), (3) seeks a ruling declaring him eligible for relief under § 212(h) of the INA, see 8 U.S.C. § 1182(h)*fn3 (hereinafter "§ 212(h)"), and (4) seeks a ruling ordering the Immigration and Naturalization Service ("INS") to conduct an individualized bond hearing. The parties have fully briefed the issue and presented oral argument. The matter is now ripe for disposition.
I. Background
A. Factual and Procedural Background
Petitioner is a native and citizen of Pakistan who was admitted to the United States as a nonimmigrant on September 4, 1983, and was granted lawful permanent resident status ("LPR status") on January 26, 1986. (In re Ponnapula, May 22, 2001 BIA decision at 1 [hereinafter "BIA decision"].) In 1993, a New York State grand jury, sitting in Manhattan, indicted Petitioner, along with several other defendants, for grand larceny in the first degree, see N.Y. Penal Law § 155.42,*fn4 and for falsifying business records in the first degree, see id. § 175.10.*fn5 (Decl. of Alexander E. Eisemann in Supp. of Mot. for Temp. Restraining Order and Order to Show Cause at 2, ¶ 3 [hereinafter "Eisemann Declaration"].) Over the next year, Petitioner and the Manhattan District Attorney's Office engaged in plea negotiations. (Id.)
At one point during his trial, the District Attorney's office offered to allow petitioner to plead guilty to a misdemeanor with a probationary sentence. (Id. at ¶ 4.) Petitioner considered the offer and immigration consequences of pleading guilty versus going to trial. Petitioner's counsel advised him that, if convicted after trial, he would likely receive a sentence of less than five years imprisonment. (Id.) Petitioner realized that even if he were convicted of a felony after trial, he would still likely be eligible for hardship relief from deportation pursuant to 8 U.S.C. § 1182(c) (1994). (Id.) Based on this information, Petitioner decided to turn down the plea offer and instead go to trial. On December 20, 1994, Petitioner was convicted in the Supreme Court of the State of New York for grand larceny in the first degree and was sentenced to an indeterminate term of imprisonment with a minimum of one year and a maximum of three years.*fn6 BIA Decision at 1.
On October 4, 2000, the INS issued a Notice to Appear charging that Petitioner was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who has been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43); namely a theft offense for which the term of imprisonment was at least one year. (Gov. Mem. in Opp. to Pet. at 4, Exhibit A at 24-26.) On January 8, 2001, an immigration judge ordered Petitioner removed from the United States and denied his application for relief under former § 212(c) of the INA. The Immigration Judge found that Petitioner was not within the purview of the holding in St. Cyr v. INS, 229 F.3d 406 (2d. Cir. 2000), aff'd by 533 U.S. 289.*fn7 BIA Decision at 1.
Petitioner appealed the Immigration Judge's finding to the Board of Immigration Appeals ("BIA"). On May 22, 2001, the BIA dismissed the appeal and sustained the order of removal, reasoning that St. Cyr applied only to those individuals who had pleaded guilty, but not to individuals who had gone to trial. BIA Decision at 1-2.
On May 7, 2002, following two years of incarceration on the larceny charge that underlies his current final order of removal, the New York State Department of Correctional Services released Petitioner. (Petition at 2, ¶ 3.) Upon his release, the INS immediately took Petitioner into custody and transferred him to the Pike County Jail, in Pike County, Pennsylvania. (Id. at ¶ 4.) On May 8, 2002, Petitioner filed the instant Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241, in the United States District Court for the Southern District of New York. The matter was subsequently transferred to the Eastern District of Pennsylvania and, ultimately, to this court, where the petition was filed on July 16, 2002.
On July 29, 2002, the court ordered Respondents to show cause why the Petition should not be granted. Respondents filed their response to the show cause order on August 19, 2002. On September 13, 2002, Petitioner filed a reply to Respondents show cause order. The court held oral argument on November 7, 2002. The matter is now ripe for disposition.
B. Background of Former § 212(c)
Under the statutory regime in place prior to 1996, a lawful permanent resident convicted of a deportable offense was statutorily eligible to seek discretionary relief from deportation. See 8 U.S.C. § 1182(c) (1994). However, in 1996, Congress amended the INA through enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1241 et seq. (1006) and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 et seq. (1996). Pre-IIRIRA, only those who had been convicted — either by plea or at trial — of a crime that fell under the definition of an "aggravated felony," see 8 U.S.C. § 1101(a)(43) (1994), and who had served a prison term of at least five years were statutorily ineligible for discretionary relief. See 8 U.S.C. § 1182(c) (1994). Even a defendant convicted of an aggravated felony and sentenced to five or more years imprisonment might have maintained eligibility for § 212(c) relief, provided that he had not served five years of his sentence at the time of his removal hearing. See Matter of Ramirez-Somera, 20 I&N Dec. 564, 566 (BIA 1992) (finding an immigrant eligible for § 212(c) relief despite having been sentenced to a fifteen year prison term because he had not yet served five years of his sentence); see also United States v. Ben Zvi, 242 F.3d 89, 99 (2d Cir. 2001) (stating that the five year eligibility bar "turns not on the sentence imposed but on the period of actual incarceration"); Greenidge v. INS, 204 F. Supp.2d 594, 600 (S.D.N.Y. 2001). Thus, the relief was available to a large number of immigrant defendants, regardless of the sentence ultimately imposed.
The AEDPA and IIRIRA significantly limit the cases where discretionary relief from removal can be sought. They preclude an alien, who has been ordered removed from the United States because of a conviction that qualifies as an aggravated felony, from applying for discretionary relief from removal. See e.g., St. Cyr, 533 U.S. at 325 (stating that IIRIRA eliminated any possibility of § 212(c) relief).
Petitioner's conviction for a fraud offense — which made him deportable and ineligible under the AEDPA and IIRIRA to apply for discretionary relief — occurred on December 20, 1994, approximately two and one half years before Congress enacted these statutes. However, Petitioner's removal proceedings were commenced on October 4, 2000, almost three and one half years after the enactment of the AEDPA and IIRIRA.*fn8 Consequently, Petitioner argues that applying AEDPA and IIRIRA to bar his eligibility to seek discretionary relief would have an impermissible retroactive effect.
C. The Supreme Court's Decision in St. Cyr

In St. Cyr, the Supreme Court held that discretionary relief under former § 212(c) "remains available for aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect."*fn9 533 U.S. at 326. In reaching this conclusion, the Court analyzed whether applying the repeal to petitioners, like St. Cyr, who pled guilty before the law's enactment, would have an impermissible retroactive effect. Id. at 315. The Court applied its two-part retroactivity test set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994), and its progeny.*fn10

Applying the first step of the Landgraf test, the Court concluded that Congress had not unambiguously decided the issue of § 304 of IIRIRA's retroactive application to pre-enactment convictions. Id. at 320. Because Congress did not express an intent to apply the repeal retroactively, the Court turned to the second step of the retroactivity analysis — whether the statute would have an impermissible retroactive effect if it applied to immigrants who pled guilty prior to IIRIRA's enactment. The Court stated that its duty was to make a "commonsense, functional judgment about whether the new provision attaches new legal consequences to events completed before its enactment" guided by "familiar considerations of fair notice, reasonable reliance, and settled expectations." Id. at 321.
In making its judgment, the Court noted that "preserving the possibility of [§ 212(c)] relief" is one of the main considerations for an immigrant in deciding "whether to accept a plea offer or instead go to trial." Id. at 323. The Court also noted that immigrants are "acutely aware" of the immigration consequences of their decisions. Id. at 322. Because applying § 304 of IIRIRA to petitioners, like St. Cyr, who accepted a plea with knowledge that § 212(c) relief would be available, would upset their settled expectations, the Court held that applying the repeal would be impermissibly retroactive. Id. at 325.
In the instant case, given that the court is interpreting § 304 of IIRIRA, it is bound by the Supreme Court's finding in St. Cyr that Congress "did not definitively decide the issue of [IIRIRA's] retroactive application to pre-enactment convictions" Id. at 320. Thus, the court is presented with the very narrow legal question of whether it would be contrary to "familiar considerations of fair notice, reasonable reliance, and settled expectations" to apply IIRIRA retroactively to Petitioner. Martin v. Hadix, 527 U.S. 343, 358 (1999). In other words, does the fact that Petitioner was convicted at ...

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