Cocaine is the reason Montenegro is being deported.
He has filed a Petition for Writ of Habeas Corpus pursuant to28 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 EffectiveDeath Penalty Act (AEDPA) and Illegal Immigration Reform and ImmigrantResponsibility Act (IIRIRA) did not deprive district courts ofjurisdiction under 28 U.S.C. § 2241 over legal questions raised bycriminal aliens in habeas petitions seeking review of final removalorders).
Specifically, Petitioner alleges Respondents acted in violation of theConstitution when they retroactively applied AEDPA and IIRIRA andinitiated removal proceedings before Petitioner's conviction becamefinal.1
On April 25, 1996, a jury convicted Petitioner for possessing, with theintent to deliver, more than 900 grams of cocaine. On October 30, 1996,Petitioner was sentenced to twenty years in the Illinois Department ofCorrections. His conviction was affirmed by the Illinois AppellateCourt. The Illinois Supreme Court denied Petitioner's Leave to Appeal onOctober 6, 1998. On July 30, 1998, Petitioner received a Notice ofHearing from theImmigration and Naturalization Service requestingPetitioner to appear and show cause why he should not be deported underthe Immigration and Naturalization Act. See8 U.S.C. § 1227(a)(2)(A)(iii) (stating that "any alien who isconvicted of an aggravated felony at any time after admission isdeportable").2
Generally, exhaustion of administrative remedies is required underthe Immigration and Naturalization Act (INA) before an alien maychallenge an order of removal. See 8 U.S.C. § 1252(d). Exhaustion isnot required, however, for constitutional claims because the Board ofImmigration Appeals does not have the authority to adjudicate suchissues. 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 ofImmigration 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 removalproceedings brought against an alien whose alleged offense was committedprior to their enactment. Specifically, Petitioner would like to takeadvantage of repealed section 212(c) which afforded discretionary relieffrom deportation in certain circumstances. The statutory history ofdiscretionary 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 aliensconvicted of aggravated felonies are generally not eligible for any form ofdiscretionary relief from deportation when removal proceedings arecommenced after April 1, 1997.
Petitioner asserts that although his removal proceedings began afterApril 1, 1997, the AEDPA and IIRIRA should not retroactively apply to himbecause the conviction was entered prior to their enactment.3 TheUnited States Supreme Courthas been receptive to this argument when theresident alien's pre-IIRIRA conviction stemmed from a plea agreement.St. Cyr. v. I.N.S., 533 U.S. 289, 326 (2001) (holding that "§ 212(c)relief remains available for aliens  whose convictions were obtainedthrough plea agreements and who, notwithstanding those convictions, wouldhave been eligible for § 212(c) relief at the time of their pleaunder the law then in effect").
Petitioner's decision to plead not guilty and roll the dice at trialoccurred before IIRIRA became effective. Our circuit and several othersfaced with this situation have concluded that the IIRIRA can be appliedto aliens whose removal proceedings began after the 1996 Act but who wereconvicted at trial prior to the repeal of § 212(c). See Lara-Ruizv. I.N.S., 241 F.3d 934, 945 (7th Cir. 2001) (holding that applying§ 304(a) to petitioner, who "did not enter a plea of guilty," wouldnot have retroactive effect because "`it would border on the absurd' toargue that an alien would refrain from committing crimes or would contestcriminal charges more vigorously if he knew that after he had beenimprisoned and deported, a discretionary waiver of deportation would nolonger be available to him"); Dias v. I.N.S., 311 F.3d 456, 458 (1stCir. 2002) (holding that "application of the new statutory limitations ondiscretionary relief does not have an impermissible retroactive effect onthose aliens who would have been eligible for discretionary relief whenthey were convicted of a felony after trial"); Theodoropoulos v. I.N.S.,313 F.3d 732, 740 (2d. Cir. 2002) (holding that St. Cyr shall not beextended to an alien who chooses to go to trial); Chambers v. Reno,307 F.3d 284, 293 (4th Cir. 2002) (holding that the application of IIRIRA§ 304(b) is not impermissibly retroactive as to an alien convicted attrial of an aggravated felony); Armendariz-Montoya v. Sonchik,291 F.3d 1116, 1121 (9th Cir. 2002) (holding that "unlike aliens whopleaded guilty, aliens who elected a jury trial cannot plausibly claimthat they would have acted any differently if they had known about §440(d)").
Petitioner is not entitled to 212(c) relief simply because he wasconvicted of possession of cocaine before the section was repealed.Petitioner did not enter into a plea bargain but instead chose to pleadnot guilty and take his chances at trial. Therefore, he does not fallwithin the purview of St. Cyr v. I.N.S. The Court is guided by theprecedent above and finds Petitioner's argument unavailing.
Due Process Violation
Petitioner claims the Immigration Judge acted in violation of thedue process clause of the Fifth Amendment when he issued a removalorder on October 19, 1998. Petitioner alleges his conviction was not yetfinal and could not support a removal order. "To prevail on a dueprocess claim, a petitioner must produce `concrete evidence' indicatingthat the due process violation `had the potential for affecting' theoutcome of the hearing." Ambati v. Reno, 233 F.3d 1054, 1061 (7th Cir.2000) (citations omitted).
Prior to the enactment of IIRIRA, the term conviction was notdefined.4 Whendeportation was based on a conviction, courtsrequired the conviction to be "final." So long as a direct appealwas pending, a conviction was not final. See Pino v Nicolls,215 F.2d 237, 244 (1st Cir. 1954), rev'd on other grounds349 U.S. 901 (1955) (stating that "judicial action in the normalroutine appellate review provided by law, [is] part of the ordinaryprocesses of re-examination, the outcome of which perhaps ought to beawaited before it can be said, with sufficient certainty anddefiniteness, that the state has `convicted' the alien of crime");Will v. I.N.S., 447 F.2d 529, 533 (7th Cir. 1971) (holding that"as long as a direct appeal is pending, it is sufficient to negatefinality of conviction for the purposes of [deportation]");Morales-Alvarado v. I.N.S., 655 F.2d 172, 175 (9th Cir. 1981) ("Once analien has been convicted by a court of competent jurisdiction andexhausted the direct appeals to which he is entitled, his conviction isfinal for the purpose of the immigration laws."); White v. I.N.S.,17 F.3d 475, 479 (1st Cir. 1994) (holding that a conviction is final ifdirect appellate review has been either exhausted or waived); Mansooriv. I.N.S., 32 F.3d 1020, 1024 (7th Cir. 1994) ("At the time of Mansoori'sdeportation hearing, there was no direct appeal pending; therefore, thestate conviction was final for deportation purposes.").
Whether these cases remain viable after the enactment of IIRIRAhas been the subject of some debate. The Fifth Circuit stated "[t]here isno indication that the finality requirement imposed by Pino, and thiscourt, prior to 1996, survives the new definition of "conviction" found inIIRIRA § 322(a)." Moosa, 171 F.3d at 1009. A court in the NorthernDistrict of Illinois continues to impose a finality requirement, holdingthat "[f]or immigration purposes, a conviction is final when an alien hasexhausted his right to direct appeal despite any possibility fordiscretionary review." Kahn v. Perryman, No. 00 C 3398, 2000 WL1053962, *2 (N.D.Ill. July 31, 2000).
The question need not be resolved here. Even if Petitioner'sconviction was effectively suspended while he sought appellate review, itbecame final on October 6, 1998 when the Illinois Supreme Court deniedhis Leave to File an Appeal — almost two weeks prior to theImmigration Judge's order of removal on October 19, 1998.5
Petitioner also filed a post-conviction petition, collaterallyattacking his state-court conviction. Petitioner asserts conducting aremoval hearing in October 1998 was unconstitutionally prematurebecause his post-conviction petition was still working its way through thecourts of Illinois.
Even before the IIRIRA, collateral proceedings did not affect thefinality of a conviction. See Pino, 215 F.2d at 244 (holding that "[t]hemere possibility of [the conviction being overturned] does not defeatdeportation of the convicted alien; though of course if, prior todeportation, he has succeeded in one of these ways in upsetting hisconviction, it can no longer serve as a basis for deportation"). "To holdotherwise would substantially doaway with deportation for conviction asthe ingenious deportee could by a succession of post-convictionproceedings postpone finality of judgment." Will, 447 F.2d at 533.Petitioner's due process argument, predicated on a pendingpost-conviction petition, is without legal support.
Applying IIRIRA to Petitioner's removal proceedings was notimpermissibly retroactive because the removal proceedings were based on aconviction secured at trial and were initiated after IIRIRA's effectivedate. Petitioner's removal proceedings were not constitutionally infirmsimply because a state post-conviction petition was pending in theIllinois courts at the time of the deportation order.
Ergo, the Petition for Writ of Habeas Corpus is DENIED.
1. Respondents argue the Court has no subject matter jurisdiction tohear a petition arguing that Respondents' decision was an abuse ofdiscretion. See Sol v. INS, 274 F.3d 648, 651 2d 2001). The Court readsthe petition to complain that IIRIRA was impermissibly appliedretroactively and that the Immigration Judge initiated removalproceedings in violation of the Fifth Amendment's due process clause.These are issues the Court has jurisdiction to review.Calcano-Martinez, 533 U.S. at 352.
2. An aggravated felony is defined as "illicit trafficking in acontrolled substance (as defined in section 802 of Title 21)."8 U.S.C. § 1101(a)(43). Cocaine is a Schedule II controlledsubstance. See 21 U.S.C. § 812.
3. Because Petitioner was placed in removal proceedings afterIIRIRA's effective date, the Court will have to determine only whether§ 304(a) of IIRIRA applies (and not § 404(b) of the AEDPA), thusbarring Petitioner from receiving the benefits of former §212(c).
4. The term conviction is now defined, with respect to an alien, as a:
formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where — (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
8 U.S.C. § 1101(a)(48). As congressional intent is clear, thedefinition of conviction is applied retroactively. Moosa v. I.N.S.,171 F.3d 1006-07 (5th Cir. 1999).
5. Petitioner petitioned the United States Supreme Court for writ ofcertiorari which was subsequently denied on February 22, 1999. Even ifPetitioner's conviction did not become final until that date, Petitionerhas not shown that holding a deportation hearing prior to February 22,1999 was a "due process violation [that] `had the potential foraffecting' the outcome of the hearing." Ambati, 233 F.3d at 1061.Indeed, the U.S. Supreme Court refused to hear Petitioner's case.