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GUTIERREZ-PEREZ v. FASANO

January 19, 1999

JOSE MANUEL GUTIERREZ-PEREZ PETITIONER,
v.
ADELE FASANO, DISTRICT DIRECTOR, DISTRICT 39, U.S. IMMIGRATION AND NATURALIZATION SERVICE RESPONDENT.



The opinion of the court was delivered by: Gonzalez, District Judge.

     ORDER GRANTING PETITIONER'S REQUEST FOR RELIEF UNDER 28
                   U.S.C. § 2241 [Doc. No. 1]

BACKGROUND

Petitioner Jose Manuel Gutierrez-Perez is a Mexican citizen who became a lawful permanent resident of the United States in the early 1990s.*fn1 In August 1993, petitioner was convicted of conspiracy to manufacture methamphetamine in violation of California Penal Code § 182(1). The Immigration and Naturalization Service ("INS") commenced deportation proceedings against him on February 5, 1996. Shortly thereafter, petitioner applied for discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act ("INA").*fn2 On April 26, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which, among other things, made deportable aliens convicted of certain offenses ineligible for section 212(c) relief. On November 26, 1996, an immigration court judge denied petitioner's request for discretionary relief and ordered him deported. The Board of Immigration Appeals ("BIA") denied his appeal on September 15, 1998, finding him "statutorily ineligible" for section 212(c) relief because of AEDPA. (Return, Ex. at 2 (09/15/98 Decision of BIA).)

On October 14, 1998, petitioner filed the instant "Complaint for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus (with Stay of Injunction)." The Court construed petitioner's "complaint" as a petition for a writ of habeas corpus under 28 U.S.C. § 2241 and issued an Order on October 18, 1998 requiring respondent to show cause who the petition should not be granted. Additionally, the Court stayed petitioner's deportation pending resolution of his petition. Respondent filed a return on November 4, 1998.

DISCUSSION

Petitioner argues that the denial of his application for section 212(c) relief violated his Fifth Amendment equal protection and due process rights.*fn3

A. Applicable Law

1. Discretionary Relief from Deportation

The INA makes several types of aliens "deportable." See generally 8 U.S.C. § 1227. Here, the Immigration Judge found that petitioner was deportable because he had been convicted of an aggravated felony. See (Return, Ex. at 5 (11/26/96 Order of Immigration Judge) ("IJ Opinion")); see also 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable.").

At the time the INS commenced, deportation proceedings against petitioner, he was eligible for discretionary relief from deportation under section. 212(c) of the INA. See 8 U.S.C. § 1182(c) (1994) (allowing section 212(c) relief). On April 26, 1996, however, AEDPA was enacted. See Pub.L. No. 104-132, 110 Stat. 1214 (1996). Section 440(d) of AEDPA categorically barred aliens convicted of certain crimes, including petitioner's from obtaining section 212(c) relief.*fn4 Id. at § 440(d), 110 Stat. at 1277.

Shortly thereafter, the BIA addressed the question of whether section. 440(d) applied to persons whose section 212(c) applications were pending when AEDPA was enacted. In In re Soriano, the BIA determined that Congress did not intend section 440(d) to apply to aliens whose section 212(c) applications were pending at the time of its enactment. Interim Decision (BIA) 3289, 1996 WL 426888 (June 27, 1996) ("Soriano I"). The Attorney General subsequently overturned this opinion, holding "that the amendment to INA § 212(c) made by AEDPA § 440(d) applies to proceedings such as Respondent's, in which an application for relief under section 212(c) was pending when AEDPA was signed into law." In re Soriano, Interim Decision 3289 (Feb. 21, 1997 A.G.) ("Soriano II").

2. Review of Deportation Orders

Prior to AEDPA, the courts of appeal had jurisdiction to review final deportation orders. AEDPA removed this jurisdiction. See Duldulao v. INS, 90 F.3d 396, 399 (9th Cir. 1996) ("AEDPA section 440(a), which affects the power of the court rather than the rights and obligations of the parties, thus revokes our jurisdiction to review Duldulao's final order of deportation.").

After AEDPA was enacted, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). See Pub.L. No. 104-208, 110 Stat. 3009, 3009-546 (1996). Petitioner's deportation order is governed by the "transitional rules" of IIRIRA, as his deportation proceedings were initiated in February 1996 and the BIA denied petitioner's request for discretionary relief on September 15, 1998. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997) ("As to cases in which a final deportation or exclusion order was filed after October 30, 1996, and which were pending before April 1, 1997, IIRIRA's transitional rules apply. IIRIRA's permanent provisions pertain to removal proceedings initiated by the INS on or after April 1, 1997."); id. at 1150 n.4 ("Pursuant to 8 C.F.R. § 241.31, a deportation order becomes final `upon dismissal of an appeal by the Board of Immigration Appeals. . .'"). Under these transitional rules, the courts of appeal retain a narrow scope of review over final deportation orders. See Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997) (finding that the courts of appeal retain jurisdiction over "whether the petitioner is (i) an alien (ii) deportable (iii) by reason of a criminal offense listed in the statute"), cert. denied, Katsoulis v. INS, ___ U.S. ___, 118 S.Ct. 624, 139 L.Ed.2d 605 (1997), cited in Magana-Pizano v. INS, 152 F.3d 1213, 1216 (9th Cir. 1998). This narrow scope of review does not extend to petitioner's claims here.

Broader review of deportation orders remains available under 28 U.S.C. § 2241. See Magana-Pizano, 152 F.3d at 1222 ("[B]ecause the Suspension Clause prevents IIRIRA from foreclosing access to general statutory habeas relief in this case, Magana-Pizano may pursue his remedies under 28 U.S.C. § 2241."). Section 2241 provides that "[w]rits of habeas corpus may be granted by the Supreme Court any justice thereof, the district courts and any circuit judge within their respective jurisdictions." 28 U.S.C. § 2241(a). In Magana-Pizano, the Ninth Circuit held that section 2241 allowed consideration of claims like those made by petitioner here. 152 F.3d at 1222 ("We ...


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