MEMORANDUM & ORDER
Anita B. Brody, District Judge.
I. Factual and Procedural History
A native and citizen of Cape Verde, Manuel Da Rosa Silva ("Silva"), was admitted to the United States as a lawful permanent resident on August 28, 1980, at the age of sixteen. On July 17, 1995, Silva pleaded guilty in the New Jersey Superior Court, Union County, to the offense of burglary and, on January 12, 1996, was sentenced to three years of probation. Two months later, on March 26, 1996, Silva was arrested for burglary of a motor vehicle in Elizabeth, New Jersey. On June 26, 1996, Silva was sentenced to three years probation. On June 27, 1997, the Court found that Silva "wilfully violated conditions of his probation," vacated Silva's prior sentence of three years probation and sentenced him to four years imprisonment for the 1995 burglary indictment. Gov't Resp. to Pet. Ex. 2. After his release, on November 4, 1999, Silva was convicted of shoplifting in New Jersey, for which he served 180 days in prison.
On September 14, 2001, the Immigration and Naturalization Service (the "INS") issued a Notice to Appear, advising Silva that he was removable from the United States based on his 1995 burglary conviction, an aggravated felony as defined in 8 U.S.C. § 1227(a)(2)(A)(iii). on November 28, 2001, he was placed in INS custody. On May 7, 2002, at Berks County Prison, the INS served Silva with Additional Charges of Deportability that advised him that he was also removable from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) because he had been
Silva sought to be released on bond while his removal proceedings were pending. On February 20, 2002, Immigration Judge Walter Durling (the "IJ") held a bond hearing and declined to release Silva while the removal proceedings were pending, finding that Silva presented a "threat to the community or a significant flight risk and should be detained in the custody of Immigration and Naturalization Service
At a March 12, 2002 hearing on the merits of Silva's removal, the IJ found that Silva's 1995 burglary conviction, for which he ultimately served four years in prison, was an aggravated felony as defined by the Immigration and Nationality Act ("INA"). On April 15, 2002, at a subsequent hearing to determine whether Silva was eligible for a waiver of his 1995 burglary conviction,
On November 29, 2002, Silva filed this habeas petition challenging the removal order that has been entered against him. Silva contends that: (1) his 1995 burglary conviction is not an aggravated felony and therefore he cannot be removed as an aggravated felon; (2) his conviction for shoplifting is not a crime of moral turpitude and therefore he cannot be removed because he has been convicted of only once, not twice, of a crime of moral turpitude; (3) he is statutorily eligible for waiver of deportation under 8 U.S.C. § 1182(h) and the denial of a § 1229b waiver is a violation of his equal protection rights; (4) he is statutorily eligible for waiver of deportation under 8 U.S.C. § 1229b; (5) he is statutorily eligible for waiver of deportation under 8 U.S.C. § 1182(c); (6) his due process rights were violated by the IJ's failure to inform him of the availability of counsel and the subsequent lack of counsel at Silva's removal hearings; and (7) his detention is unlawful.
II. Jurisdiction and Standard of Review
The district court has subject matter jurisdiction to entertain petitions for a writ of habeas corpus filed by aliens subject to a final order of removal under to 28 U.S.C. § 2241(c), which authorizes the district court to review an alien's removal order. See 28 U.S.C. § 2241(c); Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2287, 150 L.Ed.2d 347 (2001); Liang v. INS, 206 F.3d 308, 317 (3d Cir.2000), cert, denied, 533 U.S. 949, 121 S.Ct. 2590, 150 L.Ed.2d 749 (2001).
A. Silva's 1995 Burglary Conviction is an Aggravated Felony
The IJ properly ruled that Silva is deportable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). 8 U.S.C. § 1227(a)(2)(A)(iii) provides that "any alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). An "aggravated felony" includes "a theft offense ... or burglary offense for which the term of imprisonment [is] at least 1 year." 8 U.S.C. § 1101(a)(43)(G).
On July 17, 1995, Silva pleaded guilty to a burglary offense in New Jersey. Silva was initially sentenced to three years of probation for this 1995 burglary offense. On June 27, 1997, however, Silva's probationary sentence was vacated because he violated the conditions of his probation. After vacating Silva's probationary sentence, the judge resentenced Silva to serve four years in prison for his 1995 burglary conviction.
Silva incorrectly maintains that he is not deportable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) because he was initially sentenced to probation for his 1995 burglary offense. Under New Jersey law, probation is properly viewed as a conditional sentence in that the defendant remains subject to a prison term for failure to comply with the conditions imposed by the court. See N.J.S.A. 2C:45-3(a)(4) and ABA Standards, Probation s 1.1(b) and Commentary (Approved Draft, 1970). The New Jersey statute that addresses revocation of probation provides that:
In this case, Silva was placed on probation as a conditional sentence. When he violated the terms of his probation, the court revoked his conditional sentence of probation and imposed a sentence of four years imprisonment. This four-year prison sentence related back to the 1995 burglary conviction. As a result, Silva is removable as an aggravated felon because his 1995 conviction was for a burglary offense for which the term of imprisonment was greater than one year. See 8 U.S.C. § 1101(a)(43)(G).
B. Silva Has Two Convictions for Crimes of Moral Turpitude
Silva is removable not only as a result of his commission of an aggravated felony, but also because he has committed two separate crimes of moral turpitude, namely, his 1995 burglary conviction and his 1999 shoplifting conviction.
The immigration statute does not define "crime of moral turpitude." The term "moral turpitude" defies a precise definition. 6 Charles Gordon, et al. Immigration Law and Procedure § 71.05(1)(d)(i). Black's Law Dictionary notes an "honesty" component in its definition, which includes: "[cjonduct that is contrary to justice, honesty, or morality." Black's Law Dictionary 1026 (7
In 1999, Silva was convicted of shoplifting in violation of N.J.S.A. § 2C:20-11(b)(1). Black's Law Dictionary defines shoplifting as "[l]arceny of merchandise from a store or business establishment." Black's Law Dictionary 1378 (6
Silva contends, nevertheless, that his 1999 conviction for shoplifting is not a conviction of a crime of moral turpitude. To support his argument, Silva points to the fact that he was only sentenced to 180 days in prison for shoplifting. The length
C. Silva is Ineligible for a Hardship Waiver under 8 U.S.C. § 1182(h)
Silva argues that his removal order is unlawful because he is eligible for a waiver under 8 U.S.C. § 1182(h). This provision of the statute, known as a hardship waiver, provides the Attorney General with the discretion to waive deportation orders for those persons subject to deportation because of his or her commission of certain crimes. The alien may qualify if he or she is:
8 U.S.C. § 1182(h)(1)(B), (h)(2)(1994 & Supp. II 1996); see also, Catney v. I.N.S., 178 F.3d 190, 193 (3d Cir.1999). The hardship waiver is not available, however, to lawful permanent residents who have been convicted of an aggravated felony after their admission for permanent residence. The statute provides, in pertinent part:
8 U.S.C. § 1182(h). Because Silva is a permanent resident who has committed an aggravated felony, he is ineligible to receive a hardship waiver.
8 U.S.C. § 1182(h) makes a distinction between two categories of aliens: aggravated
D. Silva is Not Eligible for Cancellation of Removal Under 8 U.S.C. § 1229b
The IJ found that Silva was statutorily ineligible to receive relief from removal under 8 U.S.C. § 1229b(a).
8 U.S.C. § 1229b(a). Silva meets the requirements for subsections (1) and (2), but he is statutorily ineligible for cancellation of removal because he has been convicted of an aggravated felony. Therefore, the IJ properly denied Silva's application for cancellation of removal.
E. Silva is Eligible for a § 212(c) Waiver
The IJ found that Silva was statutorily ineligible to receive a " § 212(c)" waiver. Before the effective dates of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 212(c) of the INA was interpreted to give the Attorney General broad discretion to waive deportation of resident aliens. This waiver was known as a "212(c)" waiver after its section number in the INA.
In this case, despite the fact that his removal proceedings were commenced after the 1996 repeal of the § 212(c) waiver, Silva remains eligible for a § 212(c) waiver 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) ("StCyr"). Finding that Congress had not been sufficiently explicit in repealing the waiver, the Supreme Court held "that § 212(c) relief remains available for aliens... whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." St. Cyr, 533 U.S. at 326, 121 S.Ct. 2271. Silva is eligible for § 212(c) relief because at the time he plead guilty to the 1995 burglary offense, § 212(c) relief was still available, even for those aliens convicted of an aggravated felony.
At a hearing held on March 12, 2002, the IJ made a preliminary finding that Silva was eligible to seek a § 212(c) waiver. At the next hearing on April 15, 2002, the INS informed the IJ that Silva had two convictions that post-dated the 1996 change in the law.
Granting Silva a § 212(c) waiver may, in fact, be fruitless, however, this does not affect his eligibility to receive such a waiver under the statute. Therefore, I find Silva is eligible for a § 212(c) waiver, vacate the IJ's decision and remand Silva's petition back to the IJ for a determination of whether Silva should receive a § 212(c) waiver.
F. Silva's Due Process Rights Were Not Violated by His Lack of Representation in the Removal Proceedings
Silva claims that his due process rights were violated by the IJ's alleged failure to advise him that he could obtain legal representation for the removal proceedings. There is no Sixth Amendment right to counsel in deportation hearings. Therefore, any claim of ineffective assistance of counsel must be based on a deprivation of due process under the Fifth Amendment umbrella of "procedural" due process. Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir.2002); Xu Yong Lu v. Askcroft, 259 F.3d 127 (3d Cir.2001)(citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984)). To meet the standard for a due process violation, Silva must show that he was "prevented from reasonably presenting his case." Xu Yong Lu, 259 F.3d at 131.
INS regulations require the IJ to advise an alien of his or her right to secure counsel of the alien's choice at the start of the hearing, as well as the availability of free legal services. See 8 C.F.R. § 240.10(a)(1) & (2).
In the instant case, the IJ acted in conformity with the regulations and provided Silva ample opportunity to secure representation. Silva provides no support for his statement that the IJ failed to advise him of his right to secure counsel of his choice or the availability of free legal services. When Silva was served with a Notice to Appear, he was given a list of attorneys and organizations that provided free legal services. Gov't Resp. to Pet. Ex. 1 at 2 (Certificate of Service). In his habeas petition, Silva states that he informed the IJ that he wished to be represented by his family counsel, however, this counsel was in Providence, Rhode Island, and would not be able to represent him because of the distance between Providence and York, Pennsylvania. Pet. Ex. B at 6. Presumably, Silva did not offer this information unsolicited, but rather, stated his intent to retain counsel after being apprized of such a right by the IJ.
It is clear that the IJ was sensitive to the issue of representation by counsel and gave Silva several chances to obtain counsel.
While it is unfortunate that Silva was unable to procure his desired counsel, he was clearly informed of his right to counsel and of free legal services available in the area in which his removal proceedings were located. Silva cannot demonstrate that the presence of an attorney would have produced a different result. Moreover, Silva has failed to make any showing that he was "prevented from reasonably presenting his case." Xu Yong Lu, 259 F.3d at 131. As such, I find that no prejudice resulted from Silva's failure to have an attorney and that his right to due process was not violated.
G. Silva's Detention is Lawful
In the final claim of his habeas petition, Silva argues that his continued detention is unconstitutional. Throughout his removal proceedings, Silva has been detained pursuant to 8 U.S.C. § 1226(c). This provision of the statute provides for mandatory detention of criminal aliens subject to removal by reason of having committed an aggravated felony
Silva's argument is completely foreclosed by the Supreme Court's recent decision in Demote, v. Hyung Joon Kim, ___ U.S. ___, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Noting that "detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed," the Supreme Court held that mandatory detention for criminal aliens is a constitutionally permissible part of the removal process. Id. Therefore, Silva's continued mandatory detention while in removal proceedings is clearly constitutional.
Prior to the Supreme Court's decision in Demore, however, a conflict existed between circuits. Three Courts of Appeals, including the Third Circuit, reached the conclusion that criminal aliens could not be
At the time Silva's removal proceedings began, the Third Circuit's holding in Patel v. Zemski 275 F.3d 299 (3d Cir.2001), applied to all criminal aliens subject to mandatory detention in the Third Circuit. In Patel, the Third Circuit held that mandatory detention of aliens violates their due process rights unless they have been afforded the opportunity for an individualized hearing to address the necessity of such detention.
In this case, Silva received just such an individualized hearing. On November 28, 2001, Silva was placed in INS custody pending the outcome of his removal proceedings. On February 20, 2002, the IJ, relying on the Third Circuit's decision in Patel, held a bond hearing and declined to release Silva while removal proceedings were pending.
Thus, applying Patel, Silva's constitutional due process rights were in no way violated by his detention pending the outcome of his removal proceedings. Less than three months after he was placed in INS custody, Silva was afforded an individualized hearing to address the necessity of his detention. Applying the criteria outlined in Patel, the Immigration Judge exercised his discretion and declined to release Silva. This purely discretionary decision of the IJ is not reviewable by this court.
IV. Motion for Temporary Stay of Removal
Because I will remand Silva's petition to the IJ to determine whether to grant Silva a § 212(c) waiver, Silva's deportation is accordingly stayed pending the outcome of the IJ's decision.
For the reasons stated above, I will grant Silva's habeas petition and remand back to the IJ for a determination as to:
(1) Silva's entitlement to a § 212(c) waiver;
I will deny the remaining claims of Silva's habeas petition, finding that:
(1) Silva's 1995 burglary conviction is an aggravated felony;
(2) Silva has been convicted of two crimes of moral turpitude;
(3) Silva is ineligible for a hardship waiver under 8 U.S.C. § 11182(h);
(4) Silva is ineligible for Cancellation of Removal under 8 U.S.C. § 1229b;
(5) Silva's due process rights were not violated by his lack of counsel;
(6) Silva's continued detention while his removal is pending is constitutional.
An appropriate Order follows.
Silva's habeas petition is
8 U.S.C. § 1252(g).
8 U.S.C. § 1101(a)(48)(B).
8 U.S.C. § 1227(a)(2)(A)(II)(ii).
8 C.F.R. § 240.10
Patel, 275 F.3d at 314.