Dash v. Farquharson ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1564
JACQUELINE DASH,
Petitioner, Appellant,
v.
STEVEN H. FARQUHARSON, DISTRICT DIRECTOR,
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Jacqueline Dash on brief pro se.
Robert Clarke Corrente, United States Attorney, Lisa
Dinerman and Dulce Donovan, Assistant United States Attorneys,
on Opposition to Motion for Stay of Removal.
September 21, 2004
Per Curiam. Petitioner Jacqueline Dash, a lawful
permanent resident, has filed a motion for stay of deportation
pending appeal of the dismissal of her habeas petition, filed under
28 U.S.C. § 2241. The district court dismissed the petition on the
ground, among others, that it was an abuse of the writ. We
conclude that, even assuming petitioner had not abused the writ,
she still would lose on the merits of her claims.
Petitioner's first contention concerns her eligibility
for a waiver of deportation under § 212(h) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1182(h), on the basis of extreme
hardship. Petitioner is ineligible for such relief, however,
because she has been convicted of an aggravated felony. Pursuant
to the amendments made by the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA), see § 348(a), such a
conviction bars an alien from applying for a section 212(h) waiver.
Further, and contrary to petitioner's arguments, the
IIRIRA amendment to section 212(h) applies retroactively. IIRIRA
§ 348(b) specifically states that "[t]he amendment made by
subsection (a) shall be effective on the date of the enactment of
this Act and shall apply in the case of any alien who is in
exclusion or deportation proceedings as of such date unless a final
administrative order in such proceedings has been entered as of
such date." This is the kind of language that shows "Congress'
willingness . . . to indicate unambiguously its intention to apply
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specific provisions retroactively." INS v. St. Cyr, 533 U.S. 289,
318-19 & n.43 (2001) (citing § 348(b), in dictum, as an example of
such language). "Where the congressional intent is clear, it
governs." Kaiser Alum. & Chem. Corp. v. Bonjorno, 494 U.S. 827,
837 (1990).
Petitioner's second argument -- that the immigration
judge (IJ) incorrectly concluded that petitioner was not entitled
to apply for a waiver under INA § 212(c), 8 U.S.C. § 1182(c) --
also fails. Specifically, the IJ concluded that petitioner was
ineligible for a section 212(c) waiver because she (petitioner) had
served five or more years for an aggravated felony. Although
petitioner claims that the IJ erred both in his calculation of the
five-year period and in considering the wrong aggravated felonies,
she has waived these issues by defaulting her appeal to the Board
of Immigration Appeals from the IJ's order. The failure to exhaust
administrative remedies precludes consideration of these issues in
the current habeas petition. See Kurfees v. INS, 275 F.3d 332,
335-36 (4th Cir. 2001) (holding that an alien cannot bypass the
exhaustion requirement by filing a habeas petition); see also
Sayyah v. Farquharson, No. 03-1802, slip op. at 6-12 (1st Cir. Aug.
30, 2004).
Petitioner's final argument is that her continuing
detention pending removal is unauthorized by statute and is
unconstitutional. We do not think so and therefore agree with the
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government that petitioner's detention, at least up until the
present time, is authorized by 8 U.S.C. § 1231(a)(1)(C). This
case, therefore, is distinguishable from the circumstances
described in Zadvydas v. Davis, 533 U.S. 678 (2001). See Lema v.
INS, 341 F.3d 853 (9th Cir. 2003).
The judgment of the district court is summarily affirmed,
see 1st Cir. R. 27(c), and the motion for a stay is denied as moot.
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