Alexis Milton Edwards v. Immigration and Naturalization Service, Eva Trinidad Falconi v. Immigration and Naturalization Service

Citations: 393 F.3d 299; 2004 U.S. App. LEXIS 26335; 2004 WL 2915020Docket: 03-2292

Court: Court of Appeals for the Second Circuit; December 16, 2004; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Petitioners Alexis Milton Edwards and Eva Trinidad Falconi contest the denial of their applications for 212(c) relief from deportation due to prior erroneous denials to apply for this relief. The key issue is whether their subsequent accumulation of five or more years of imprisonment for aggravated felony offenses bars them from seeking this relief. The Court of Appeals for the Second Circuit holds that their applications should be evaluated by the Executive Office for Immigration Review (EOIR) as if they had not yet accrued that prison time, allowing for equitable relief despite the potential statutory limitations on 212(c) eligibility.

Historically, section 212(c) of the Immigration and Nationality Act provided significant relief for long-term lawful residents facing deportation, including criminal aliens. However, following amendments in 1990 and 1996, eligibility was restricted, specifically excluding aggravated felons who had served five or more years in prison and ultimately removing all aggravated felons from eligibility for 212(c) relief. These amendments were determined to apply retroactively to pending deportation cases, leading to widespread ineligibility for such relief among aggravated felons in the wake of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The Court emphasizes the importance of equitable relief, indicating that erroneous denials of 212(c) applications can render deportation proceedings fundamentally unfair.

In 1998, the court reversed the Attorney General's stance regarding the retroactive application of § 440(d) to ongoing immigration proceedings, as established in Henderson v. INS. In 2000, the court further narrowed the effects of the AEDPA and IIRIRA in St. Cyr v. INS, ruling that these laws imposed retroactive consequences on individuals who had pled guilty before their enactment, necessitating clear Congressional intent for such retroactivity, which was not found. Consequently, it was determined that those aliens were eligible for 212(c) relief. This ruling was affirmed by the Supreme Court.

Following these decisions, many aliens, including those previously denied 212(c) relief under Soriano or Yeung, petitioned the Board of Immigration Appeals (BIA) to reopen their cases. The BIA also reopened some cases on its own accord. Petitioner Anthony Milton Edwards, a lawful permanent resident since 1986, had strong family ties in the U.S. and a military background. He faced deportation after multiple drug-related convictions, with an initial 212(c) waiver granted by an Immigration Judge due to his strong equities. However, the BIA reversed this decision based on AEDPA § 440(d) and denied his motion for reconsideration.

Three and a half years later, the BIA reopened Edwards's deportation proceedings, acknowledging the impact of the Henderson decision and remanding his case for further evaluation of his eligibility for 212(c) relief.

The Board indicated that barring any further criminal activity, it would support the Immigration Judge's (IJ) original decision to grant the respondent relief. However, due to the significant time elapsed since the IJ's ruling and the respondent's rehabilitation efforts, the Board decided to remand the case for additional evidence regarding the exercise of discretion. Upon remand, the focus shifted to the respondent's eligibility for 212(c) relief. The IJ determined that, having served over five years for aggravated felonies, the respondent was ineligible for such relief, a conclusion affirmed by the Board of Immigration Appeals (BIA) on appeal.

Subsequently, the petitioner, Edwards, filed a pro se habeas petition in the Eastern District of New York under 28 U.S.C. § 2241, arguing that he had previously been awarded 212(c) relief and that time spent on a parole violation should not count towards the five-year bar. The government contended that all time served, including for parole violations, was correctly counted, resulting in Edwards being ineligible for relief. The district court denied Edwards's habeas petition, affirming that all prison time must be counted toward the five-year bar, and concluded that the BIA acted correctly in finding him ineligible for 212(c) relief.

Separately, Eva Trinidad Falconi, who entered the U.S. in 1980 and became a lawful permanent resident in 1984, was arrested in 1995 on drug-related charges. After pleading guilty, she was sentenced to 151 months in prison. The INS initiated deportation proceedings, during which Falconi requested 212(c) relief. The IJ denied her request based on statutory ineligibility, a decision the BIA upheld, stating that at the time, she had served less than five years for her offense. After the Supreme Court’s ruling in St. Cyr II, Falconi sought to reopen her deportation case, claiming her application for 212(c) should be assessed under prior law.

Falconi had served over five years in prison when the BIA denied her motion for 212(c) relief, concluding she was ineligible. On March 4, 2002, she filed a pro se habeas petition under 28 U.S.C. § 2241 in the Eastern District of New York, claiming she should be a candidate for 212(c) relief. The District Court granted her petition on November 26, 2002, determining that at the time of the IJ and BIA decisions, she had served less than five years. The court found that the retroactive application of the AEDPA by the IJ and BIA improperly deprived her of the opportunity to seek relief, thus remanding the case for a merits adjudication.

The INS contended that Falconi's claims were not ripe for judicial review, citing the potential for legal changes before her eligibility for release in 2006. However, the court disagreed, noting that Falconi could be released and deported within two years, and the lengthy adjudication process could lead to hardship if her claims were delayed. The court highlighted that requiring her to refile could result in her facing deportation or detention while her claims were unresolved, establishing that her claims were ripe for review.

On the merits, Falconi and another petitioner, Edwards, argued that eligibility for 212(c) relief should be based on their status when an administratively final order of deportation was issued. They also argued for nunc pro tunc relief. The court indicated that the second argument was sufficient for resolution, making it unnecessary to address the statutory claim.

Under the discretionary relief regime applicable at the time of the Petitioners' guilty pleas, aliens seeking 212(c) relief had to meet three criteria: (1) possess lawful permanent resident status, (2) have been lawfully domiciled in the U.S. for at least seven years, and (3) if convicted of aggravated felonies, have served less than five years in prison for those offenses. The determination of eligibility for 212(c) relief has been a significant issue, particularly regarding when eligibility is assessed, as this can change over time. 

Case law indicates a divergence in how eligibility is interpreted. For example, in Lok v. INS, it was decided that the five-year imprisonment requirement should be evaluated based on the date of the final order of deportation. Conversely, in Buitrago-Cuesta v. INS, the court applied the rationale from Lok to the five-year requirement without explicitly stating so. INS regulations also suggest that an alien must demonstrate statutory eligibility before a deportation order is finalized, a point underscored by the regulation's broad language post-Vargas v. INS.

Currently, the INS argues that the five-year imprisonment bar accumulates indefinitely, affecting eligibility for 212(c) relief. This stance raises questions about whether judicial deference to agency interpretations (Chevron and Auer deference) should apply, especially in light of recent rulings indicating that wrongful denial of 212(c) applications could violate due process. Courts face a complex decision regarding deference when such interpretations might challenge the constitutionality of the statute in question.

Petitioners present a viable independent argument for eligibility for 212(c) relief based on nunc pro tunc, allowing for resolution of their cases without addressing prior statutory interpretation issues. Nunc pro tunc, meaning 'now for then,' is an equitable remedy recognized in immigration law for over sixty years, enabling correction of errors to place individuals in their rightful immigration status. Historical precedents, such as *Matter of L.* and *Matter of T.*, affirm its application. Courts have also utilized this doctrine to rectify errors in immigration proceedings, as seen in cases like *Batanic v. INS*. The argument for nunc pro tunc relief hinges on whether its use contradicts Congressional intent. The INS argues that Congress intended to bar such relief for aggravated felons with significant prison sentences under 8 U.S.C. § 1182(c), but the BIA has historically accepted nunc pro tunc waivers, and no legislative changes have explicitly revoked this practice. Therefore, the continued applicability of nunc pro tunc relief remains supported by precedent and the absence of clear Congressional prohibition.

Congressional reenactments, particularly in light of administrative interpretations, significantly challenge the INS's current position unless changes in 8 U.S.C. § 1182(c) indicate an intent to reject previous administrative interpretations. The 1990 amendments to § 212(c), which introduced a five-year bar for aggravated felons seeking relief, do not reflect such intent to preclude nunc pro tunc relief. The amendments aimed to limit eligibility for certain individuals but did not explicitly terminate the possibility of equitable relief or indicate a congressional intent to prevent judicial correction of INS errors. 

Nunc pro tunc relief is defined by courts as flexible and should be awarded based on justice and fairness, particularly to rectify agency errors that significantly disadvantage individuals. In immigration cases, this relief is particularly pertinent when an error prevents an alien from pursuing specific deportation relief. The serious consequences of deportation often equate to banishment for long-term residents, necessitating judicial remedies for agency mistakes. The government argues for an additional requirement that such errors must constitute due process violations to qualify for nunc pro tunc relief, a standard previously applied in other contexts.

To obtain dismissal of an indictment in an illegal reentry prosecution, a defendant must demonstrate that the erroneous denial of 212(c) relief during deportation proceedings constitutes a due process violation, specifically by showing a 'reasonable probability' of being granted relief if the opportunity had not been withheld. Unlike the usual context where a defendant seeks to restore a lost opportunity for relief, in illegal reentry cases, the defendant seeks dismissal of the indictment, requiring the court to assess whether the defendant would likely have received immigration relief had the error not occurred. Remanding the case to the Executive Office for Immigration Review (EOIR) is not an option for the courts in this context.

In contrast, the situation for the Petitioners involves a direct denial of the opportunity to apply for 212(c) relief, which has historically been granted in a significant percentage of cases. The court's role is to restore this opportunity rather than to decide the merits of the Petitioners' claims. To qualify for nunc pro tunc relief, Petitioners must demonstrate that they were wrongly denied the chance to apply for 212(c) relief and that this denial would be irreparable without such relief.

The court concludes that nunc pro tunc relief is appropriate for the Petitioners, who had accrued over five years of imprisonment following the erroneous denial of their applications. For Petitioner Falconi, the district court's decision is affirmed; for Petitioner Edwards, the court reverses and remands with instructions to grant the writ, given that both the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) indicated that 212(c) relief would have been appropriate had the case been decided at the relevant time. The writ mandates that the necessary administrative steps be taken to grant Petitioner Edwards 212(c) relief.

Both forms of relief are collectively termed '212(c) relief,' following nomenclature changes introduced by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which replaced 'deportation' with 'removal.' The Immigration and Naturalization Service (INS) ceased operations as of March 1, 2003, with its functions transferred to the Department of Homeland Security, but references in this opinion will continue to use the term INS due to the relevance of that agency at the time of the events in question. 

There is ambiguity regarding whether the Board's decision to reopen proceedings was made sua sponte or at the respondent's request; however, resolving this matter is unnecessary for evaluating Petitioner Edwards's claims. The question of whether pretrial detention time affects the five-year bar for 212(c) relief remains unresolved in this circuit, but it is assumed that Edwards's detention did not impact the calculation of his five-year incarceration. While petitioners argue that the five-year bar resembles a statute of limitations that could be equitably tolled, the court refrains from expressing an opinion on this matter.

All parties concur that the version of 8 U.S.C. § 1182(c) applicable at the time of the petitioners' guilty pleas should govern their original deportation proceedings. The INS's argument, based on 8 C.F.R. § 1212.3(f) in conjunction with another regulation, suggests that eligibility for 212(c) relief should be assessed based on the alien's status at the time of the final deportation order. 

The INS contends that the nunc pro tunc doctrine is limited to correcting inadvertent errors and cannot address defects in a judgment that reflects the agency's original intent. However, this interpretation does not align with established practices in immigration law, as demonstrated by various case precedents.

The Board's opinions regarding Petitioners Edwards and Falconi's 212(c) claims do not deviate from prior positions, indicating a potential for nunc pro tunc relief, which was ultimately not granted in Edwards's case despite the Board's ambiguous reasoning. The INS argues that 8 U.S.C. § 1182(c) prohibits nunc pro tunc relief, but this stance lacks deference, particularly as it contradicts longstanding agency practices. There is a strong rationale for applying the "reenactment" rule due to Congress's awareness of the Board's practices when reenacting the Seventh Proviso as 212(c). Agency errors do not deprive an alien of relief opportunities if they would have been independently barred from applying due to their circumstances. Additionally, factors such as unclean hands might limit nunc pro tunc relief, but these were not claimed by the government in the current cases. The government's position that erroneous denials of 212(c) relief cannot constitute constitutional violations has been rejected in recent cases. If further proceedings are necessary to grant relief, the agency must apply the same standards to the Petitioners that were used for others at the time of their erroneous denials. The BIA has emphasized the importance of balancing adverse factors with social and humane considerations. Both Petitioners have served over five years in prison following final deportation orders, although the implications of nunc pro tunc relief in cases involving more than five years of imprisonment during appeals remain unaddressed.