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THEN v. I.N.S.

June 22, 1999

SIMON B. THEN, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



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

OPINION

This is an action brought by pro se. petitioner, Simon B. Then ("Then"), a detainee at the Detention Center of the Immigration and Naturalization Service (the "INS"), in Newton, New Jersey, against respondent, the INS.*fn1 Presently pending is the petition (the "Petition") of Then for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 ("Section 2241"). Then specifically seeks relief from a final order of deportation (the "Final Order of Deportation").*fn2

For the reasons set forth below, the Petition is dismissed with prejudice.

Background

A. Facts

Then is a native and citizen of the Dominican Republic. See Petition at ¶ 5. He entered the United States in 1983. See id. at ¶ 7.

In October 1993, a State grand jury indicted Then in a four-count indictment (the "Indictment"). The first two counts of the Indictment charged Then with possession of a controlled dangerous substance with intent to distribute, in violation of N.J.S.A. 2C:35-10a(1), 2C:35-5a(1) and 2C:35-5b(3). See Judgment of Conviction and Order of Commitment (the "Judgment and Order"). Count three ("Count Three") of the Indictment charged Then with possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7 and 2C:35-5a. See id. The fourth count charged Then with violating N.J.S.A. 2C:28-4a for writing false reports. See id.

On 15 March 1995, Then pleaded guilty to Count Three of the Indictment (the "Guilty Plea"). See Then Aff. at ¶ 4. A judgment of conviction (the "Judgment of Conviction") was issued by the New Jersey Superior Court, Law Division, Passaic County (the "Superior Court") on 30 June 1995. See Judgment and Order. Then was sentenced to a minimum prison term of fourteen months. See Then Aff. at ¶ 5; Judgment and Order.

The Guilty Plea rendered Then deportable pursuant to Section 241(a)(2)(B)(i) ("Section 241") of the Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1227(a)(2)(B)(i) (formerly 8 U.S.C. § 1251).*fn3 Consequently, upon his completion of the fourteen month prison term, Then was placed by the INS in deportation proceedings. See Then Aff. at ¶ 3. Deportation proceedings were commenced on or about 12 August 1996 when the Government issued a Notice of Hearing and an Order to Show Cause requiring Then to show cause why he should not be deported.*fn4 See Amended Answer at 1. After appearing without counsel before immigration judge John A. Duck, Jr. (the "Immigration Judge") on 29 October 1996, see Then Aff. at ¶ 6; Amended Answer at 2, Then was permitted to hire an attorney and was released upon posting bond. See id. at ¶ 7. Then thereafter consented to having his new attorney, Jose W. Vega, Esq. ("Vega") conduct the subsequent deportation proceedings and appear on his behalf. See Then Aff. at ¶ 7; Amended Answer at 2.

On 7 March 1997, a deportation hearing (the "7 March 1997 Deportation Hearing") was held before the Immigration Judge. According to the Government, at that time, Vega, on behalf of Then, requested a waiver of deportation (the "212(c) Application"), pursuant to Section 212(c) ("Section 212(c)") of the INA, 8 U.S.C. § 1182(c).*fn5 See 7 March 1997 Deportation Hearing Transcript (the "Deportation Hearing Tr.") at 5:6-10.*fn6

In an oral decision, dated 7 March 1997, (the "7 March 1997 Decision"), the Immigration Judge refused to grant the 212(c) Application. In so doing, the Immigration Judge stated:

  [Then] has asked to apply, through counsel, for a
  212(c) waiver. However, I note that the respondent
  [Then] has been convicted for the crime of possession
  of cocaine and heroine with intent to distribute
  within 1,000 feet of a school. I find, therefore,
  that that [sic] crime is an aggravated felon [sic],
  making him ineligible for that 212(c) waiver sought
  by the respondent. There is not [sic] other relief
  sought nor is there any known by the government or
  this Court. . . . Therefore, it is the order of the
  Court that the respondent be deported from the United
  States to the Dominican Republic. . . .

7 March 1997 Decision at 1-2.

It appears the Immigration Judge, in refusing to grant the 212(c) Application, placed reliance upon Section 241(a)(2)(B)(i) of the INA. See 8 U.S.C. § 1227(a)(2)(B)(i); see also supra n. 3. It further appears the Immigration Judge took into account § 440(d) ("Section 440(d)") of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, tit. I, § 105(2), 110 Stat. 1214 (24 April 1996) (the "AEDPA"). Section 440(d) added the following language to Section 212(c):

  [Section 212(c)] shall not apply to an alien who is
  deportable by reason of having committed any criminal
  offense covered in Section 241(a)(2)(A)(iii)
  [aggravated felony], (B) [controlled substance
  offenses], (C) [firearms offenses], or (D) [offenses
  against national security]. . . . AEDPA § 440(d), 110
  Stat. 1214, 1217 (emphasis added).*fn7 Based

  upon the Judgment of Conviction of Then which, as
  stated, fell under Section 241(a)(2)(B)(i), the
  Immigration Judge found Then statutorily ineligible
  for a waiver under Section 212(c).

Also during the 7 March 1997 Deportation Hearing, Vega, on behalf of Then, admitted the five allegations contained in the Order to Show Cause and conceded Then's deportability. See Deportation Hearing Tr. at 3-4; Amended Answer at 2.

Vega appealed the 7 March 1997 Decision to the Board of Immigration Appeals (the "BIA") on 10 April 1997 (the "Appeal"). See Then Aff. at ¶ 10. In support of the Appeal, Vega, on behalf of Then, argued:

  The Respondent [Then] should be eligible for a 212(c)
  waiver. He was convicted prior to the enactment of
  the Antiterrorism and Effective Death Penalty Act.
  This Act should not be applied retroactively.
  Furthermore, the Respondent is being denied equal
  protection of the laws by not being allowed an
  opportunity to apply for a 212(c) waiver because if
  he was in exclusion proceedings he would be eligible
  for this waiver. See Matter of Silva, 16 I & N Dec
  26 (BIA 1996)[sic].

See Appeal.

By order, dated 28 January 1998, (the "28 January 1998 Order"), the BIA deemed the Appeal untimely because it was not filed within thirty calendar days of the 7 March 1997 Decision. See 28 January 1998 Order. The BIA stated: "The Immigration Judge's decision is accordingly now final[.]" Id.; See Then Aff. at ¶ 10.

Following the denial of the Appeal by the BIA, Vega indicated to Then's family, via facsimile transmittal (the "Vega Facsimile"), that even if timely filed, the Appeal would have been denied because the AEDPA is applied retroactively to all cases by the BIA. See Then Aff. at ¶ 11; Vega Facsimile attached thereto.

In support of the instant Petition, Then alleges (1) his constitutional right to due process was violated when the Immigration Judge retroactively applied AEDPA Section 440(d) to bar his 212(c) Application, see Petition at ¶¶ 2, 3, 16-17, and (2) he was denied effective assistance of counsel. Then specifically alleges Vega waived his rights to a fair hearing before the Immigration Judge by admitting all the charges lodged against him by the INS without his permission. See id. at ¶ 3; Then Aff. at ¶ 8. He further alleges Vega, despite knowing an appeal not ...


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