Omosefunmi v. INS ( 2000 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1130
SAMSON OMOSEFUNMI,
Plaintiff, Appellant,
v.
IMMIGRATION AND NATURALIZATION SERVICE, ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Samson Omosefunmi on brief pro se.
Donald K. Stern, United States Attorney, and Rayford A.
Farquhar, Assistant U.S. Attorney, on brief for appellees.
August 1, 2000
Per Curiam. After a thorough review of the record
and of the appellant’s submissions, we affirm the judgment
below, largely for the reasons set out by the district court
in its memorandum dated September 17, 1999.
We only add that to the extent any of the
individual defendants were not absolutely immune from suit
for money damages, they clearly were protected from suit for
money damages under the doctrine of qualified immunity.
Omosefunmi has failed to show that his eligibility for
relief from deportation pursuant to section 212(c) of the
Immigration and Naturalization Act, see 8 U.S.C. § 1182(c),
was “clearly established” at the time in question. When
Omosefunmi was rearrested in 1996, section 440(d) of the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) was in
its infancy, and nowhere in its text is there a specific
indication of whether or not section 440(d) was to apply
retroactively. Over two years passed before an appellate
court (this court) first ruled that section 440(d) did not
apply to already pending waiver applications. See Goncalves
v. Reno, 144 F.3d 110 (1st Cir. 1998), cert. denied, 526 U.S.
1004 (1999). By the time the issue was resolved in the
circuits, the BIA had remanded Omosefunmi’s case and held
that he was indeed eligible for consideration of section
212(c) relief.
The claim against the INS itself is barred by the
doctrine of sovereign immunity, see Gonsalves v. I.R.S., 975
F.2d 13, 15 (1st Cir. 1992); and the claims for injunctive
and declaratory relief were properly dismissed since
Omosefunmi had not exhausted the normal review procedures
available within the Immigration and Naturalization Service.
See Reiter v. Cooper, 507 U.S. 258, 269 (1993).
Affirmed. 1st Cir. Loc. R. 27(c).
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