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CAMPBELL v. ASHCROFT

July 12, 2004.

ANTHONY ROY CAMPBELL
v.
JOHN M. ASHCROFT et. al.



The opinion of the court was delivered by: STEWART DALZELL, District Judge

MEMORANDUM

Anthony J. Campbell is a criminal alien under final order of deportation. On November 19, 2003, Immigration Judge Walt Durling granted Campbell a waiver of deportation under former Section 212(c)*fn1 and cancellation of removal under current Section 240A*fn2 of the Immigration and Nationality Act ("INA"). The Bureau of Immigration and Customs Enforcement ("ICE") appealed IJ Durling's decision to the Board of Immigration Appeals ("BIA"), which reversed and ordered Campbell's deportation. Campbell filed the motion for stay of deportation and petition for a writ of habeas corpus under 28 U.S.C. § 2241 now before us. After careful review of IJ Durling's decision, the decision of the BIA, Campbell's petition, the Government's response, and Campbell's reply brief, we deny the motion for stay of deportation and dismiss the habeas petition. Factual and Procedural Background

Campbell is a native and citizen of Jamaica who entered the United States as a lawful permanent resident in 1981. In 1983, he pled guilty in New York to attempted burglary in the second degree and was sentenced to an indeterminate term of imprisonment between one and three years. Govt.'s Exs. 2 and 6. Later that year, he pled guilty in New York to criminal mischief in the fourth degree, criminal trespass in the second degree, and petit larceny. See Govt.'s Ex. 3. In 1984, the former Immigration and Naturalization Service ("INS") issued an Order to Show Cause and Notice of Hearing, which charged that Campbell was deportable pursuant to § 241(a)(4),*fn3 because he had been convicted of a crime of moral turpitude (attempted burglary) within five years of arrival in the United States. See Govt.'s Ex. 6.

  In 1986, 1988, and 1999, Campbell was convicted in New York of criminal possession of a controlled substance in the seventh degree. Finally, in 2002, Campbell was convicted in Pennsylvania of possession of a controlled substance and possession of drug paraphernalia.

  After the 2002 conviction, ICE reopened Campbell's long-dormant 1984 deportation proceedings. It alleged that, in addition to the grounds set forth in the 1984 Order to Show Cause, Campbell was also removable (1) pursuant to § 241(a)(2)-(A)(iii) as an alien convicted of an aggravated felony (attempted burglary), (2) pursuant to § 241(a)(2)(B)(i) for his 2002 controlled substance offenses (the Pennsylvania drug and paraphernalia convictions), and (3) pursuant to § 241(a)(2)-(A)(ii) as an alien convicted of two or more crimes involving moral turpitude (the 1983 and 2002 convictions). See Govt.'s Ex. 4.

  At his hearing before IJ Durling on November 19, 2003, Campbell applied for a concurrent waiver of inadmissibility under § 212(c) for all offenses before the enactment of the Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA")*fn4 and cancellation of removal under § 240A for his 2002 conviction.*fn5 After examining Campbell's criminal history, work history, and personal circumstances,*fn6 IJ Durling granted concurrent relief and terminated the deportation proceedings.

  ICE filed an appeal with the BIA, which reversed IJ Durling's decision and ordered Campbell's deportation. The BIA reasoned that Campbell was ineligible for cancellation of removal because, pursuant to the IIRIRA's transitional rules, he was in deportation proceedings governed by the law in effect before the enactment of § 240A. Matter of Campbell, No. A 37 460 559, mem. op. at 2 (E.O.I.R. Apr. 27, 2004), citing IIRIRA § 309(c).*fn7 The BIA also noted that even if cancellation of removal were available, Campbell's burglary conviction would still render him ineligible under § 240A(a)(3), which denies cancellation of removal to an alien who has been convicted of an aggravated felony. Id.

  Discussion

  Campbell challenges the BIA's decision on five grounds. We examine each of his arguments in turn. A. Availability of § 212(c) waiver for post-IIRIRA convictions

  Campbell first invokes the Supreme Court's decision in I.N.S. v. St. Cyr, 533 U.S. 289 (2001), for the proposition that IJ Durling's grant of § 212(c) relief waived all of his convictions, including the 2002 Pennsylvania offenses. This argument is without merit. The IIRIRA repealed § 212(c) as of April 1, 1997, but in St. Cyr the Supreme Court held that § 212(c) relief 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." 533 U.S. at 326 (emphasis added). Pursuant to St. Cyr, then, Campbell remained eligible for relief for his pre-IIRIRA offenses. By the time of his 2002 drug and paraphernalia conviction, however, the IIRIRA had repealed § 212(c), and as to those offenses he is ineligible for the relief the statute had previously authorized. See St. Cyr, 533 U.S. at 297 (reviewing history of § 212(c)).

  B. Expungement of 1983 burglary conviction under § 212(c) as predicate for § 240A relief

  Campbell next argues that the BIA erred in concluding that IJ Durling's § 212(c) waiver of the 1983 attempted burglary conviction did not exempt him from § 240A's aggravated felony bar. This argument is also without merit.

  As the BIA correctly noted, a § 212(c) waiver merely exempts an alien from deportation for a criminal offense and does not expunge it from his criminal record for immigration law purposes. Matter of Campbell, No. A 37 460 559, slip op. at 2, citing Matter of Balderas, 20 I. & N. Dec. 389, 391 (1991) (holding that "since a grant of section 212(c) relief `waives' the finding of excludability or deportability rather than the basis of the excludability itself, the crimes alleged to be grounds for excludability or deportability do not disappear from the alien's record for immigration purposes"). Campbell ...


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