Garcia-Echaverria v. U.S.

376 F.3d 507

Marco GARCIA-ECHAVERRIA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 03-3285.

United States Court of Appeals, Sixth Circuit.

Submitted: April 23, 2004.

Decided and Filed: July 1, 2004.

Rehearing En Banc Denied August 25, 2004.

Appeal from the United States District Court for the Northern District of Ohio at Toledo, John W. Potter, J.

COPYRIGHT MATERIAL OMITTED

Lawrence J. Kiroff (briefed), Assistant United States Attorney, Toledo, Ohio, for Appellee.

Marco A. Garcia-Echaverria, El Paso, Texas, pro se.

Before: MERRITT and MOORE, Circuit Judges; DUGGAN, District Judge.^*

OPINION

MOORE, Circuit Judge.

Marco Garcia-Echaverria ("Garcia-Echaverria"), pro se Petitioner-Appellant, appeals the district court's denial of his petition for habeas corpus relief. Garcia-Echaverria was sentenced for a conviction of unlawful reentry, in violation of 8 U.S.C. § 1326(b), and the Immigration and Naturalization Service ("INS," now the Department of Homeland Security "DHS,") has reinstated the prior Final Order of Removal. On appeal, Garcia-Echaverria argues that his initial removal was unlawful, and therefore that his current detention is unconstitutional. Garcia-Echaverria contends that his initial removal was unlawful because the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") erred by concluding that Garcia-Echaverria's Kentucky drug conviction constitutes an "aggravated felony," making him ineligible for relief from deportation/removal.¹ Garcia-Echaverria also argues that his initial removal was unlawful because (1) the line that 8 U.S.C. § 1182(h) draws between illegal aliens ("non-LPRs") and lawful permanent residents ("LPRs") violates the Equal Protection Clause of the Fifth Amendment; and (2) application of the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), which make Garcia-Echaverria ineligible for relief from deportation/removal, raises retroactivity concerns.²

For the following reasons, we AFFIRM the district court's decision denying Garcia-Echaverria's petition for habeas corpus relief.

I. BACKGROUND

Garcia-Echaverria, a native and citizen of Mexico, entered the United States on or about January 1, 1980, and became a lawful permanent resident on or about January 26, 1990.³ On January 6, 1997, Garcia-Echaverria was convicted by the State of Kentucky pursuant to a guilty plea, entered on December 16, 1996, to the charge of "Trafficking Marijuana over 8 ounces, less than 5 pounds," in violation of K.R.S. 218A.1421(3). Joint Appendix ("J.A.") at 141-42. On January 10, 1997, the Kentucky Circuit Court sentenced Garcia-Echaverria to five years of imprisonment for his Kentucky drug conviction.

On May 13, 1997, the INS issued Garcia-Echaverria a Notice to Appear, charging that he was removable due to his Kentucky drug conviction under two sections of the Immigration and Nationality Act ("INA") — § 237(a)(2)(A)(iii) (codified as 8 U.S.C. § 1227(a)(2)(A)(iii)) for being convicted of an "aggravated felony" and § 237(a)(2)(B)(i) (codified as 8 U.S.C. § 1227(a)(2)(B)(i)) for being convicted of a controlled substance offense. On September 7, 1999, an IJ ordered Garcia-Echaverria removed from the United States. On July 20, 2000, the BIA dismissed Garcia-Echaverria's appeal, finding that a waiver of inadmissibility pursuant to § 212(c) of the INA (originally codified as 8 U.S.C. § 1182(c), but repealed by the IIRIRA, 104 Pub.L. No. 104-208, § 304(b), 110 Stat. 3009 (1996)), was not available to him, and that he was statutorily ineligible for cancellation of removal pursuant to § 240A(a) of the INA (codified at 8 U.S.C. § 1229b).

Garcia-Echaverria was found in the United States on August 31, 2001, when he was stopped for speeding by officers of the Ohio Highway Patrol at Fremont, Ohio. On October 3, 2001, a grand jury returned a one-count indictment, charging Garcia-Echaverria with being an alien found in the United States on or about August 31, 2001, after having been deported for committing an "aggravated felony" and without obtaining permission to reenter from the Attorney General, in violation of 8 U.S.C. § 1326(b). After his motions to dismiss the indictment were denied, Garcia-Echaverria pleaded guilty on September 10, 2002, to the charge of unlawful reentry, and the district court sentenced him to thirty-seven months of imprisonment. Prior to pleading guilty, Garcia-Echaverria filed on May 3, 2002, in the Northern District of Ohio, a petition for a writ of habeas corpus challenging his current detention. On December 30, 2002, the district court denied Garcia-Echaverria's petition for habeas corpus. Garcia-Echaverria filed a timely notice of appeal.

II. JURISDICTION

The district court had jurisdiction over Garcia-Echaverria's habeas petition pursuant to 28 U.S.C. § 2241. Garcia-Echaverria filed both a direct appeal of his conviction for unlawful reentry and a habeas petition challenging his current detention. Typically, a federal prisoner may file a § 2241 petition contesting the legality of his detention only if his claim is such that he cannot obtain effective relief on direct appeal or through a § 2255 motion. Paulino v. United States, 352 F.3d 1056, 1060-61 (6th Cir.2003); Bannerman v. Snyder, 325 F.3d 722, 723 (6th Cir.2003). While an alien may file a § 2241 petition challenging his removal proceedings, an alien is not "in custody" for removal purposes if he is detained pursuant to a sentence for a criminal conviction, even if the INS has filed a detainer order with the prison where the petitioner is incarcerated. Zolicoffer v. U.S. Dep't of Justice, 315 F.3d 538, 540-41 (5th Cir.2003) (collecting cases); Prieto v. Gluch, 913 F.2d 1159, 1163-64 (6th Cir.1990), cert. denied, 498 U.S. 1092, 111 S.Ct. 976, 112 L.Ed.2d 1061 (1991). In this case, however, at the time Garcia-Echaverria filed his § 2241 petition, the INS had already reinstated Garcia-Echaverria's prior Final Order of Removal. The IIRIRA requires the INS to take custody of and commence procedures to execute the removal of an alien who is subject to a final order of removal based upon a conviction for an "aggravated felony." Simmonds v. INS, 326 F.3d 351, 356 (2d Cir.2003); see also Mustata v. U.S. Dep't of Justice, 179 F.3d 1017, 1022 n. 4 (6th Cir.1999). This requirement was strong evidence of the DHS's intention to take custody of Garcia-Echaverria immediately following the conclusion of his sentence, and thus satisfies the custody requirement for a § 2241 petition. Because Garcia-Echaverria was in INS custody at the time he filed his habeas petition challenging the constitutionality of his confinement, the district court had jurisdiction pursuant to 28 U.S.C. § 2241.⁴

This court has jurisdiction over the appeal pursuant to 28 U.S.C. §§ 1291 and 2253. Subsequent to this case being submitted on the briefs, Garcia-Echaverria completed his sentence for his § 1326(b) conviction, and Garcia-Echaverria is currently being detained by the DHS pending his removal. Garcia-Echaverria's completion of his criminal sentence neither deprives us of jurisdiction over this appeal nor moots the claims asserted in the habeas petition that we are reviewing in this appeal. Rosales-Garcia v. Holland, 322 F.3d 386, 394-96, 395 n. 6 (6th Cir.) (en banc), cert. denied, 539 U.S. 941, 123 S.Ct. 2607, 156 L.Ed.2d 627 (2003). We review de novo questions of statutory interpretation raised in a § 2241 petition. Mustata, 179 F.3d at 1019.

III. ANALYSIS

Garcia-Echaverria argues that the BIA erred by concluding that his Kentucky drug conviction was an "aggravated felony," making him both deportable and ineligible for relief from deportation/removal. Although Garcia-Echaverria concedes that his drug conviction is a felony under Kentucky law, he argues that it does not constitute an "aggravated felony" within the meaning of 8 U.S.C. § 1101(a)(43)(B) because the offense to which he pleaded guilty did not contain a trading or dealing element nor would it have been punishable as a felony under federal law.

The BIA correctly determined that Garcia-Echaverria's Kentucky drug conviction constitutes an "aggravated felony" within the meaning of the INA. The term "aggravated felony" is defined through a list of qualifying offenses, which includes: "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). In § 924(c), "the term `drug trafficking crime' means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)," or one of two other federal acts not relevant here. 18 U.S.C. § 924(c)(2).

There is some conflict regarding what elements must be present in order for a state offense to constitute a drug-trafficking crime within the meaning of 8 U.S.C. § 1101(a)(43)(B). United States Sentencing Guideline ("U.S.S.G.") § 2L1.2 requires a sentencing enhancement to be imposed for the crime of unlawful reentry, if the alien was deported after having committed a drug-trafficking crime. Several circuits have held that in the sentencing context, the phrase "drug trafficking crime" includes offenses that would be punishable under the Controlled Substances Act (or two other federal acts not relevant here), so long as the offense is punishable as a felony under either state or federal law. Gerbier v. Holmes, 280 F.3d 297, 299 (3d Cir.2002). Under this interpretation, a drug offense that is punishable as a felony under state law could be considered an "aggravated felony," for purposes of applying the enhancement contained in U.S.S.G. § 2L1.2, even if the conduct would have only been punishable as a misdemeanor under federal law. Id.

The Third Circuit has defined 8 U.S.C. § 1101(a)(43)(B) differently for deportation purposes. Id. According to the Third...