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MONTENEGRO v. I.N.S.
February 21, 2003
MARCELINO MONTENEGRO, PETITIONER,
IMMIGRATION AND NATURALIZATION, AND JUDGE ROBERT VINIKOOR, RESPONDENTS.
The opinion of the court was delivered by: Richard Mills, District Judge
Cocaine is the reason Montenegro is being deported.
He has filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241 and seeks review of an order of removal.
The Court's jurisdiction is established by Calcano-Martinez v. I.N.S.,
533 U.S. 348, 352 (2001) (holding that the Antiterrorism and Effective
Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) did not deprive district courts of
jurisdiction under 28 U.S.C. § 2241 over legal questions raised by
criminal aliens in habeas petitions seeking review of final removal
Specifically, Petitioner alleges Respondents acted in violation of the
Constitution when they retroactively applied AEDPA and IIRIRA and
initiated removal proceedings before Petitioner's conviction became
Generally, exhaustion of administrative remedies is required under
the Immigration and Naturalization Act (INA) before an alien may
challenge an order of removal. See 8 U.S.C. § 1252(d). Exhaustion is
not required, however, for constitutional claims because the Board of
Immigration Appeals does not have the authority to adjudicate such
issues. Castaneda-Suarez v. I.N.S., 993 F.2d 142, 144 (7th Cir. 1993).
Petitioner admits he did not appeal the removal order to the Board of
Immigration Appeals, but because Petitioner raises constitutional issues,
the exhaustion requirement is excused.
Retroactive Application of IIRIRA
Petitioner argues IIRIRA and AEDPA should not apply to removal
proceedings brought against an alien whose alleged offense was committed
prior to their enactment. Specifically, Petitioner would like to take
advantage of repealed section 212(c) which afforded discretionary relief
from deportation in certain circumstances. The statutory history of
discretionary relief from deportation is complex. To summarize briefly:
Prior to 1997, aliens deportable under the INA could
apply to the Attorney General for a discretionary
waiver of deportation pursuant to § 212(c) of the
INA. To qualify for such relief, an alien was required
to show that he (1) was a lawful permanent resident of
the United States, (2) had an unrelinquished domicile
of seven consecutive years, and (3) had not committed
an aggravated felony for which he had served a term of
at least five years. See 8 U.S.C. § 1182(c)
(1994). If the alien met these requirements, the
Attorney General had the discretion to waive
deportation. See id.; St. Cyr[v. INS], 229 F.3d [406,
410 (2d Cir. 2000)]. In 1996, Congress enacted first
the [AEDPA], which limited eligibility for relief
under § 212(c), see AEDPA, Pub.L. No. 104-132,
§ 440(d), 110 Stat. 1214, 1277 (1996), and then
the [IIRIRA] which repealed INA § 212(c)
completely, effective April 1, 1997. See IIRIRA,
Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-546,
-597 (1996). Section 212(c) relief was, in effect,
replaced by a new form of relief called "cancellation
of removal," 8 U.S.C. § 1229b, which allows the
Attorney General to cancel removal proceedings for a
class of resident aliens that does not include those
convicted of an aggravated felony.
Rankine v. Reno, ___ F.3d ___ (2d Cir. 2003). As a result, resident aliens
convicted of aggravated felonies are generally not eligible for any form of
discretionary relief from deportation when removal proceedings are
commenced after April 1, 1997.
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