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MUSTO v. PERRYMAN

May 5, 1998

CLAUDIO MUSTO, Petitioner,
v.
BRIAN PERRYMAN, as District Director of the Immigration & Naturalization Service, Respondent.



The opinion of the court was delivered by: BUCKLO

MEMORANDUM OPINION AND ORDER

 The petitioner, Claudio Musto, is an alien subject to a final order of deportation. He filed a petition for writ of habeas corpus challenging the final order and seeking to prevent its execution. The respondent seeks dismissal of, or in the alternative summary judgment on, the petition. Mr. Musto seeks a cross-motion for summary judgment. Mr. Musto's habeas petition is granted as set forth below.

 Background

 Mr. Musto is a native and citizen of Italy. He entered the United States as a lawful permanent resident alien on April 20, 1968 at the age of six. He is currently married to a United States citizen and is the stepfather of her children.

 On March 27, 1986, the Immigration and Naturalization Service ("INS") issued an order to show cause ("OSC") alleging that Mr. Musto was deportable from the United States based on four narcotics related convictions. These four convictions include two convictions on April 3, 1984 for possession of a controlled substance, a conviction on April 19, 1984 for possession of a controlled substance, and a conviction on February 4, 1986 for possession of cannabis with intent to deliver and possession of a controlled substance.

 At a hearing before an immigration judge ("IJ") on January 27, 1987, Mr. Musto was found deportable based on the allegations contained in the March 27, 1986 OSC. The IJ, however, granted Mr. Musto a waiver under 8 U.S.C. § 1182(c), permitting him to retain his permanent resident status and remain in the United States. The INS appealed this decision to the Board of Immigration Appeals ("BIA") which affirmed the decision of the IJ on May 31, 1991.

 On June 18, 1993, the INS issued a second OSC. This charging document was based on additional narcotics related criminal convictions. Mr. Musto was convicted of possession of a controlled substance on February 19, 1986 and of delivery of a controlled substance on October 26, 1990.

 At contested deportation hearings held before the IJ on December 16, 1993 and June 29, 1994, Mr. Musto denied that he was deportable pursuant to the OSC. After the INS introduced certified copies of the conviction records, Mr. Musto admitted that those records related to him. The IJ found based on this record that Mr. Musto was deportable pursuant to 8 U.S.C. §§ 1251(a)(2)(A)(iii) and 1251(a)(2)(B)(i). The IJ subsequently denied his new application for a § 1182(c) waiver and he appealed to the BIA.

 While Mr. Musto's appeal was pending at the BIA, the Immigration and Nationality Act ("INA") was amended. On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214. § 440(d) of the AEDPA amended § 212(c) of the INA, 8 U.S.C. § 1182(c), to provide, in relevant part, that:

 
This subsection shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in section 1251(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1251(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 1251(a)(2)(A)(i) of this title.

 Subsequently, the BIA dismissed Mr. Musto's appeal on August 27, 1997, relying on AEDPA § 440(d) and the Attorney General's opinion in In re Soriano, Interim Dec. No. 3289 (BIA 1996; A.G. 1997). The BIA found that Mr. Musto was no longer eligible for a § 1182(c) waiver.

 Mr. Musto filed the instant petition for writ of habeas corpus on October 9, 1997. He alleges that this court has jurisdiction to hear his claim and that the BIA's decision in this case and the Attorney General's decision in Soriano violates the presumption against the retroactive application of statutes, due process, and equal protection.

 Jurisdiction

 The government contends that this court lacks subject matter jurisdiction over the claims asserted in Mr. Musto's petition under the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, enacted subsequent to the AEDPA on September 30, 1996. It argues that the IIRIRA amended the INA to streamline the removal process and expedite ...


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