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February 21, 2003


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 orders).

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 final.*fn1


On April 25, 1996, a jury convicted Petitioner for possessing, with the intent to deliver, more than 900 grams of cocaine. On October 30, 1996, Petitioner was sentenced to twenty years in the Illinois Department of Corrections. His conviction was affirmed by the Illinois Appellate Court. The Illinois Supreme Court denied Petitioner's Leave to Appeal on October 6, 1998. On July 30, 1998, Petitioner received a Notice of Hearing from the Immigration and Naturalization Service requesting Petitioner to appear and show cause why he should not be deported under the Immigration and Naturalization Act. See 8 U.S.C. § 1227(a)(2)(A)(iii) (stating that "any alien who is convicted of an aggravated felony at any time after admission is deportable").*fn2


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.

Petitioner asserts that although his removal proceedings began after April 1, 1997, the AEDPA and IIRIRA should not retroactively apply to him because the conviction was entered prior to their enactment.*fn3 The United States Supreme Court has been receptive to this argument when the resident alien's pre-IIRIRA conviction stemmed from a plea agreement. St. Cyr. v. I.N.S., 533 U.S. 289, 326 (2001) (holding that "ยง 212(c) relief remains available for aliens [] whose convictions were obtained through plea agreements and who, ...

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