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Hernandez v. Gonzales

February 14, 2006

DOMINGO ANTONIO HERNANDEZ, PETITIONER
v.
*ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT
*(PURSUANT TO RULE 43(C) FRAP)



Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 04-cv-02186). District Judge: Honorable Jerome B. Simandle.

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Argued November 16, 2005

Before: BARRY and AMBRO, Circuit Judges, and POLLAK*fn1 , District Judge

OPINION

Domingo Antonio Hernandez petitions us to rule, inter alia, that the repeal of suspension of deportation under the former Immigration and Nationality Act (INA) § 244(a) has an impermissible retroactive effect on aliens like him who pled guilty to a deportable offense and who would have been eligible for suspension of deportation relief but for the repeal. For the reasons provided below, we disagree.

I. Facts and Procedural Background

Hernandez, a native and citizen of the Dominican Republic, entered the United States as a B-2 "visitor for pleasure" on September 9, 1974, and was authorized to stay in this country only until October 10, 1974. Hernandez, however, remained in the United States beyond that date without authorization from the Immigration and Naturalization Service (INS).*fn2

On June 27, 1984, Hernandez pled guilty in New York state court to entering a plea of guilty to attempted criminal possession of a controlled substance (cocaine) in the third degree in violation of New York Penal Law § 220.16. As a result, he was sentenced to five years probation.

On March 12, 1997, Hernandez married a United States citizen who filed a visa petition on his behalf, which was approved on August 14, 1997. In 1998, Hernandez filed an application for adjustment of status (Form I-485) based on his marriage. In his I-485 application, Hernandez did not disclose his prior New York conviction. Hernandez's adjustment of status application was denied and a Notice to Appear was issued on June 21, 1999, starting his removal proceedings. The Notice to Appear charged Hernandez as being removable from the United States pursuant to § 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B), as an alien who after admission as a non-immigrant under INA § 101(a)(15) has remained in the United States longer than permitted by overstaying his temporary visa.

Hernandez appeared before an Immigration Judge (IJ) on December 13, 1999. At the hearing, he sought to pursue his application for adjustment of status based on his marriage pursuant to INA § 245 and, alternatively, sought discretionary relief (voiding his removal) pursuant to INA § 240A. The IJ ruled that Hernandez was ineligible for relief on both grounds because of his 1984 New York conviction.

Hernandez appealed the IJ's decision to the Board of Immigration Appeals (BIA). It remanded the matter to the IJ to clarify Hernandez's identity and to ascertain specifically whether the New York conviction actually pertained to him. Moreover, the BIA pointed out that the Government had failed to charge Hernandez with the prior conviction as a basis of removal.

On September 27, 2000, the IJ ruled that the 1984 New York conviction was for Hernandez. The next day the Government issued Additional Charges of Inadmissibility/Deportability pursuant to INA § 237(a)(2)(B)(i), charging Hernandez with being removable as an alien who has been convicted of a law or regulation of a State, the United States, or a foreign country relating to a controlled substance.

On August 13, 2002, a hearing was held and, on the basis of the 1984 criminal conviction, the IJ determined that Hernandez was ineligible for the relief he sought. Hernandez again appealed to the BIA. Excepting the IJ's ruling that Hernandez had been convicted of an "aggravated felony," the BIA affirmed the IJ's decision.

Hernandez, who was not in INS custody, sought a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3) in the United States District Court for the District of New Jersey. The District Court entertained Hernandez's § 2241 petition but denied him relief on the basis that he failed to satisfy the criteria for entitlement of the relief he sought. He know seeks our review.

II. Jurisdiction

Under the new judicial review regime imposed by the Real ID Act, Pub. L. No. 109-13, div. B, 119 Stat. 231 (2005), a petition for review is now the sole and exclusive means of judicial review for all orders of removal except those issued pursuant to 8 U.S.C. § 1225(b)(1). See 8 U.S.C. § 1252(a)(5). Our jurisdiction was also enlarged, as we now have the authority to consider constitutional claims or questions of law raised in a criminal alien's petition for review. 8 U.S.C. § 1252(a)(2)(D). Moreover, all habeas corpus petitions brought by aliens that were pending in the district courts on the date the Real ID Act became effective (May 11, 2005) were converted to petitions for review and transferred to the appropriate courts of appeals. See Real ID Act, Pub. L. No. 109-13, div. B, tit. I, § 106(c). We have held that habeas petitions that were pending before our Court on the effective date of the Real ID Act-such as the one in this case-were properly converted to petitions for review and retained by us. Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005). ...


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