Beharry v. Ashcroft

329 F.3d 51

Don BEHARRY, also known as Donald Beharry, Petitioner-Appellee, v. John ASHCROFT, Attorney General of the United States; James Ziglar, Commissioner of the Immigration and Naturalization Service; Edward McElroy, District Director of the Immigration and Naturalization Service, New York District; Immigration and Naturalization Service, Respondents-Appellants.

Docket No. 02-2171.

United States Court of Appeals, Second Circuit.

Argued: January 30, 2003.

Decided: May 1, 2003.

COPYRIGHT MATERIAL OMITTED

Robert M. Loeb, United States Department of Justice, Washington, D.C. (Robert D. McCallum, Jr., Assistant Attorney General, Donald E. Keener, Anne Murphy, United States Department of Justice, Washington, D.C.; Alan Vinegrad, United States Attorney for the Eastern District of New York, Brooklyn, NY, on the brief) for Respondents-Appellants.

Jennifer M. Green, Center for Constitutional Rights, New York, N.Y. (Judith Brown Chomsky, William Goodman, Center for Constitutional Rights, New York, NY; Nancy Kelly, Harvard Immigration & Refugee Clinic of Greater Boston Legal Services and Harvard Law School, Boston, MA; Genet Getachew, Brooklyn, NY; Paul Hoffman, Schonbrun DeSimone Seplow Harris & Hoffman LLP, Venice, CA, on the brief) for Petitioner-Appellee.

Martin S. Kaufman, New York, NY; John H. Findley, J. David Breemer, Sacramento, CA, submitted a brief for amici curiae Atlantic Legal Foundation and Pacific Legal Foundation.

Professor William J. Aceves, California Western School of Law, San Diego, CA; Professor Joan Fitzpatrick, University of Washington Law School, Seattle, WA; Franklin Siegel, City University of New York School of Law, Flushing, NY, submitted a brief for amici curiae International Human Rights Organizations.

Before: JACOBS, CALABRESI, and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Respondent John Ashcroft, Attorney General of the United States, appeals from a judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) granting petitioner Don Beharry a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on the ground that petitioner was eligible for discretionary relief from deportation under § 212(h) of the Immigration and Naturalization Act ("INA"). The district court held that various international treaty obligations required that petitioner be given the opportunity to apply for discretionary § 212(h) relief, and ordered the Immigration and Naturalization Service to conduct a hearing under § 212(h) to determine whether to grant petitioner that relief. We hold that because petitioner failed to exhaust his administrative remedies, neither the district court nor this Court has subject matter jurisdiction to consider his claim for § 212(h) relief. Because petitioner cannot be excused from either the statutory exhaustion requirement or the common-law exhaustion doctrine, we do not reach the question whether the statutory exhaustion requirement of the INA applies to petitioner's claim. We reverse the district court's judgment granting the writ, and remand for entry of a judgment dismissing the habeas petition.

BACKGROUND

I. Factual and Procedural Background

Petitioner Don Beharry ("petitioner" or "Beharry"), a native and citizen of Trinidad entered the United States as a lawful permanent resident ("LPR") in 1982 at the age of seven. His mother is also an LPR; his sister and seven-year-old daughter are United States citizens. The record does not disclose his relationship to the child's mother, or the nature and extent of his emotional or financial support for these relatives.

In July 1996, Beharry participated in the robbery of $714 from a coffee shop. In November 1996, he was convicted of robbery in the second degree in violation of N.Y. Penal Law § 160.10, and was sentenced to twenty-seven to fifty-six months' imprisonment. In February 1997, during Beharry's incarceration, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause charging Beharry with deportability as an aggravated felon. Deportation proceedings took place before an Immigration Judge ("IJ") between May 1997 and January 1998.

During these proceedings, Beharry admitted deportability as an aggravated felon, and requested three types of relief: a hearing on his eligibility for discretionary relief under INA § 212(c)¹; asylum under INA § 208 (codified at 8 U.S.C. § 1158); and withholding of deportation under INA § 243(h).² The IJ found Beharry barred from both § 212(c) relief and political asylum because he had been convicted of an aggravated felony, and ineligible for § 243(h) relief because he was not a member of a protected class under that section. The IJ accordingly ordered Beharry deported to England, with an alternate order of deportation to Trinidad.³ Beharry appealed to the Board of Immigration Appeals ("BIA"), which affirmed the IJ's decision and dismissed Beharry's appeal.

Beharry then filed a petition for habeas relief in the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) pursuant to 28 U.S.C. § 2241. The district court granted Beharry's petition and ordered the INS to conduct a hearing on Beharry's eligibility for discretionary relief under INA § 212(h) (codified at 8 U.S.C. § 1182(h)). Beharry v. Reno, 183 F.Supp.2d 584, 605 (E.D.N.Y.2002). The Attorney General ("respondent") appealed to this Court.

II. The District Court's Opinion

The district court agreed with the IJ and the BIA that Beharry was not eligible for discretionary relief under § 212(c), asylum under § 208, or withholding of deportation under § 243(h). Beharry, 183 F.Supp.2d at 588-92, 603. The court then considered, sua sponte, several other possible forms of relief. The court first found that Beharry was ineligible for cancellation of removal under INA § 240A (codified at 8 U.S.C. § 1229b), because he had been convicted of an aggravated felony. Beharry, 183 F.Supp.2d at 592, 603. The court next discussed INA § 212(h), which authorizes the Attorney General to grant a discretionary waiver of deportation in certain circumstances, including, inter alia, cases in which an alien's removal from the United States would cause extreme hardship to an alien's U.S. citizen parent or child. Beharry, 183 F.Supp.2d at 592; see also INA § 212(h).⁴ Although noting that on its face § 212(h) is inapplicable to Beharry because he is an aggravated felon,⁵ the district court nonetheless granted Beharry's habeas petition on the ground that he was entitled to a hearing on § 212(h) relief. Beharry, 183 F.Supp.2d at 592, 603-05.

In reaching this outcome, the district court concluded that a reading of § 212(h) that precluded relief to Beharry because of his status as an aggravated felon would contravene American obligations under international law. Beharry, 183 F.Supp.2d at 603-05. As the applicable sources of international law, the court discussed the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Universal Declaration of Human Rights, and customary international law. Id. at 595-601. The court found that these sources of law might be violated by deporting Beharry without considering the impact such deportation would have on Beharry's daughter, a United States citizen; that violating international law could present a constitutional problem under the Supremacy Clause, see U.S. Const., art. VI, § 2; and that § 212(h) "should be construed in conformity with international law to avoid a constitutional issue if `fairly possible.'" Beharry, 183 F.Supp.2d at 603-05 (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932)).

The district court attempted a reading that sought to avoid the perceived constitutional issue by holding that "aggravated felon[s]," as referred to in § 212(h), were only those aliens whose crimes qualified as aggravated felonies at the time the crimes were committed. Beharry, 183 F.Supp.2d at 605. Because Beharry's crime was not an aggravated felony in July 1996 when he committed it, but — due to intervening statutory changes in the INA's definition of "aggravated felony"⁶ — was an aggravated felony in November 1996 when he pled guilty, the district court held that Beharry should not be considered an "aggravated felon" within the meaning of § 212(h). See Beharry, 183 F.Supp.2d at 604-05. The district court recognized that this interpretation of § 212(h) conflicted with Domond v. INS, 244 F.3d 81, 85 (2d Cir.2001) (holding that application of AEDPA to eliminate the availability of § 212(c) relief was not impermissibly retroactive as to petitioners who had committed their crimes before AEDPA's effective date, so long as their convictions came after AEDPA's effective date), but suggested that Domond ought to be reconsidered in light of the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), which discussed the permissibility of retroactive application of certain provisions of the INA. See Beharry, 183 F.Supp.2d at 589-91, 605.

Finding that Beharry was eligible for § 212(h) relief under its interpretation of "aggravated felon," the district court granted Beharry's habeas petition and ordered the INS to conduct a hearing under § 212(h). Beharry, 183 F.Supp.2d at 604-05. The judgment was stayed pending appellate review.

DISCUSSION

I. Standard of Review

The district court's grant of a writ of habeas corpus is reviewed de novo. Jenkins v. Artuz, 294 F.3d 284, 290 (2d Cir. 2002). The district court's factual findings in support of the grant are reviewed for clear error. Id.

II. The Availability of a Hearing on Discretionary § 212(h) Relief

A. Exhaustion of Administrative Remedies

Respondent first argues on appeal that the district court lacked jurisdiction to consider Beharry's claim for relief under § 212(h) because Beharry did not present that claim to either the IJ or the BIA and thus failed to meet...