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PONNAPULA v. ASHCROFT
December 10, 2002
MURALI KRISHNA PONNAPULA PETITIONER
JOHN ASHCROFT, ET AL., RESPONDENTS
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
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.
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
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
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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