GIUSEPPE ROMANO :
: CIVIL ACTION
: No. 02-CV-843
JOHN ASHCROFT, et al. :
Ludwig, J. April 16, 2002
This habeas petition challenges the detention and order for removal of a lawful temporary resident of the United States under the expedited removal procedures of the Immigration and Nationality Act (INA) §238(b), 8 U.S.C. § 1228 (b)(1999).(1) Jurisdiction is 28 U.S.C. § 2241 (1994); Liang v. INS, 206 F.3d 308, 317 (3d Cir. 2000). For the reasons that follow, a hearing will be held on the issue of why INS did not process and act on petitioner's request in November 1990 for an adjustment of status to lawful permanent resident - and whether, in that light, there are grounds for a sua sponte estoppel and entitlement to a hearing before an immigration judge.(2)
1. Factual Background
Petitioner Giuseppe Romano, age 29, was born in Italy in 1972. Two years later, in 1974, he entered the United States with his mother. He remained in the U.S. without lawful status until 1988 when he became a lawful temporary resident under the amnesty program incorporated in the Immigration Reform and Control Act (IRCA) of 1986 (Pub.L. No. 99-603, 100 Stat. 3359) (codified in various sections of 8 U.S.C.). He has now lived here continuously for more than 27 years.
For a number of years before January 2002, when he was detained by INS, petitioner resided in the Philadelphia area, most recently with his U.S. citizen fiancee and their U.S. citizen child, who is less than a year old. His other immediate family members, including his parents and two siblings, are either U.S. citizens or lawful permanent residents.
INS reports that in 1989, when petitioner was sixteen, he was adjudicated delinquent. "The incident involved a traffic accident where a pedestrian was struck and killed . . .." Resp. Exh. 2. He was charged in the Bucks County Juvenile Court, with leaving the scene of an accident and was committed to a 28-day Outward Bound program and placed on indefinite probation, which was terminated in 1990.(3)
In November 1990, petitioner applied to INS for an adjustment of status to become a lawful permanent resident. On the application form he stated that he had never been arrested. On May 1, 1991, petitioner appeared for an interview with counsel and signed a revised application form that disclosed the prior juvenile court prosecution. INS deferred processing the application pending a review of his juvenile records. The INS case history shows that at least four interviews were scheduled and later postponed from May, 1991 to March 2, 1992.(4) No explanation is given why petitioner's application for adjustment of status was not acted on - or why, according to petitioner, he continued to receive annual work authorization extensions from INS until January, 2002.(6)
On October 26 and November 18, 1994, again in Bucks County, petitioner was arrested on drug trafficking charges. In conformity with an agreement with the prosecutor, he pleaded guilty to conspiracy, possession, and possession with intent to deliver a controlled substance (cocaine) and was sentenced to four years probation.(7) In 2001, petitioner attempted to renew his application for adjustment of status and the INS performed a criminal background check. On January 15, 2002, he appeared at the INS office in Philadelphia for "what he believed to be the final [i]nterview and approval for his adjustment to permanent resident status"(8) and was detained; since then, he has been in custody in York County Prison. The INS subsequently served him with a "Notice of Intent to Issue a Final Administrative Removal Order" based on his conviction of the drug offense, an aggravated felony. On January 28, 2002, the Deputy Assistant District Director for Detention and Removal issued a "Final Administrative Removal Order." INA § 238 (b), 8 U.S.C. § 1228 (b).(9)
On February 20, 2002, petitioner filed this habeas petition, and on February 22, 2002, an order was issued staying INS proceedings. The petition does not deny that the drug conviction constitutes an "aggravated felony."(10) Instead, petitioner contends that the expedited removal provisions were not intended to apply to lawful temporary residents and that otherwise they are unconstitutional as violations of due process of law. He requests a hearing before an immigration judge. In addition, he maintains that mandatory detention under 8 U.S.C. § 1231 (a)(2)(1999) does not pertain to him and that INS should therefore release him on bond.
2. Section 212 (c) relief: INS v. St. Cyr
Even if petitioner were entitled to a hearing before an immigration judge, he would not, in his present status, have an avenue of relief. INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) does not control this case, given petitioner's status of temporary resident. In that decision, the Court found that aliens in removal proceedings are eligible for a § 212 (c) waiver of deportation(11) if their convictions pre-dated IIRIRA's April 1, 1997 effective date and were the subject of a plea agreement. Unlike cancellation of removal under IIRIRA,(12) §212 (c) was available to aliens convicted of aggravated felonies who served terms of imprisonment of less than five years. Since petitioner's conviction pre-dates IIRIRA, it would not bar him from § 212 (c) relief. However, to be eligible for the waiver, the alien must also have been admitted for permanent residence. INA § 212 (c), 8 U.S.C. § 1182 (c).
Petitioner cites 8 C.F.R. § 212.3 (f)(2) for the proposition that a lawful temporary resident who has maintained a domicile in the United States for seven consecutive years immediately preceding his application is eligible for a § 212 (c) waiver. (13) However, length
of residence is but one of five eligibility criteria. In the absence of any of them, "a district director or Immigration Judge shall deny an application. . .." 8 C.F.R. § 212.3 (f) (emphasis added). Moreover, the first requirement is unequivocal: An application shall be denied if "[t]he alien has not been lawfully admitted for permanent residence. . .." 8 C.F.R. § 212.3 (f)(1). While petitioner's years as a lawful temporary resident count toward the residency requirement, lacking permanent residency status, he is explicitly ineligible for the waiver.(14)
The record does not demonstrate that petitioner is entitled to retroactive adjustment from temporary to permanent resident status. To succeed on the basis of estoppel, one must show (1) affirmative INS misconduct, INS v. Miranda, 459 U.S. 14, 18, 103 S.Ct. 281, 283, 74 L.Ed.2d 12 (1982); and (2) that the requested equitable relief does not contravene "a public policy established by Congress," INS v. Panglinan, 486 U.S. 875, 882, 108 S. Ct. 2210, 2215, 100 L.Ed.2d 882 (1988). Two Courts of Appeal have held that INS delay or neglect is not sufficient. Santamaria-Ames v. INS, 104 F.3d 1127, 1133 (9th Cir. 1996); Wang v. Meese, 823 F.2d 1273, 1277 (8th Cir. 1987). St. Cyr, on the other hand, arguably answers the public policy contravention issue in the negative.
Here, there is evidence that INS seemingly procrastinated processing and ultimately did not act on petitioner's application for adjustment of status when it should have done so, albeit some of the delay may be attributable to petitioner and the questionable accuracy of his original application. Moreover, it is correct, as petitioner contends, that there are a number of equitable considerations in his favor - his lengthy, almost lifelong residence, extensive family ties, the non-felony nature of his sentence, and the evidence of his purported rehabilitation. However, unless INS can and should be required to treat him as a lawful permanent resident, he has no basis to receive a discretionary hearing before an immigration judge.(16) Because INS has not satisfactorily accounted for its prolonged failure to act on petitioner's request for status adjustment - and given the harshness of the consequences - a hearing will be held to determine whether what occurred amounts to more than mere "neglect" or "delay" and could be deemed to be "affirmative misconduct" or some other justification for an estoppel.
Petitioner urges that he is not subject to mandatory detention because the expedited removal
proceedings are improper in his case and he is eligible for relief.(17) Given the undetermined merit of
his underlying premise, that argument cannot succeed at this stage.(18)
5. Due Process A decision on petitioner's due process claim will be deferred until a hearing is held on the
status of his residency. ______________________ Edmund V. Ludwig, J.
5. Due Process
A decision on petitioner's due process claim will be deferred until a hearing is held on the status of his residency.
Edmund V. Ludwig, J.
(2) An alien is described in this paragraph if the alien -