Montenegro, Marcelin v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1850
MARCELINO MONTENEGRO,
Petitioner-Appellant,
v.
JOHN D. ASHCROFT, Attorney General
of the United States,Œ
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02 C 3089—Richard Mills, Judge.
____________
SUBMITTED DECEMBER 16, 2003ŒŒ—DECIDED JANUARY 22, 2004
____________
Œ
The proper respondent to a petition under § 2241 is the person
having custody of the petitioner. 28 U.S.C. § 2243. Immigration
Judge Robert Vinikoor never had custody of Montenegro and
is therefore dismissed as a respondent. See Robledo-Gonzales
v. Ashcroft, 342 F.3d 667, 673 (7th Cir. 2003). We note also that
there is some question as to whether the Attorney General is
the custodian of an alien awaiting removal, see Vasquez v. Reno,
233 F.3d 688, 691-92 (1st Cir. 2000), but the government does
not challenge his designation so we do not address the issue.
ŒŒ
After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal
is submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
2 No. 03-1850
Before POSNER, ROVNER, and EVANS, Circuit Judges.
PER CURIUM. Marcelino Montenegro appeals a ruling
of an Immigration Judge (IJ) ordering him removed to
Mexico because of a felony drug conviction. Montenegro
was convicted by an Illinois jury in April 1996 of possess-
ing with the intent to deliver more than 900 grams of
cocaine and sentenced to 20 years’ imprisonment. As a
result of his conviction, the Immigration and Naturaliza-
tion Service1 commenced removal proceedings under 8
U.S.C. § 1227(a)(2)(A)(iii), which provides for the removal
of an alien convicted of an “aggravated felony.” Montenegro
was in the process of appealing his conviction at that
time and moved to suspend the removal proceedings un-
til his criminal appeal was concluded. The IJ delayed
the proceedings until October 1998, when he rescinded
Montenegro’s lawful permanent resident status and or-
dered him removed. Montenegro did not file an admin-
istrative appeal but instead petitioned in the district
court for a writ of habeas corpus under 28 U.S.C. § 2241.
The district court determined that it had jurisdiction
over Montenegro’s constitutional claims, see Calcano-
Martinez v. INS, 533 U.S. 348, 351-52 (2001), but denied
the petition. Montenegro now appeals, and we affirm.
Montenegro first argues that he is eligible for a discre-
tionary withholding of deportation, even though he ac-
knowledges that this waiver was abolished by the Illegal
Immigration Reform and Immigrant Responsibility Act
(IIRIRA) and the Antiterrorism and Effective Death Penalty
Act (AEDPA). See 8 U.S.C. § 1229b(a)(3). Prior to the
enactment of these laws, the Attorney General possessed
1
The INS no longer exists as an independent agency, because
its functions were transferred to the Department of Homeland
Security effective March 1, 2003. See Robledo-Gonzales, 342 F.3d
at 668 n.1.
No. 03-1850 3
the authority under § 212(c) of the Immigration and
Nationality Act to grant discretionary waivers of deporta-
tion to aliens who met certain criteria. See Lara-Ruiz v.
INS, 241 F.3d 934, 942 (7th Cir. 2001). AEDPA placed new
limits on this authority in 1996, and IIRIRA in 1997
repealed § 212(c) altogether, replacing it with a similar
form of relief called “cancellation of removal.” See 8 U.S.C.
§ 1229b(a); Lara-Ruiz, 241 F.3d at 942. Unlike § 212(c),
however, this new provision makes aliens convicted of
an “aggravated felony” ineligible for relief. Lara-Ruiz, 241
F.3d at 942.
Montenegro insists that AEDPA and IIRIRA should not
apply to him because he committed what he concedes
was an aggravated felony when relief was still available
under § 212(c). We have held, however, that Congress
intended to repeal § 212(c) as of April 1, 1997, and that
relief under that section is not available to aliens whose
removal proceedings were brought after that date. Lara-
Ruiz, 241 F.3d at 943-44. There are two limited exceptions
to this rule, but neither helps Montenegro. First, aliens
who pleaded guilty to an aggravated felony before AEDPA’s
enactment may apply for § 212(c) relief if they would
have been eligible for that relief at the time of their
pleas. INS v. St. Cyr, 533 U.S. 289, 326 (2001); Jideonwo
v. INS, 224 F.3d 692, 700 (7th Cir. 2000). But this excep-
tion does not apply to aliens like Montenegro who chose
to go to trial; such aliens did not abandon any rights
or admit guilt in reliance on continued eligibility for
§ 212(c) relief. Lara-Ruiz, 241 F.3d at 945; Rankine v.
Reno, 319 F.3d 93, 100-02 (2d Cir. 2003) (collecting cases).
Second, aliens who conceded deportability before AEDPA’s
enactment, with the expectation that they could seek
waivers under § 212(c), remain eligible to apply. LaGuerre
v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998). Montenegro’s
removal proceedings, however, did not begin until after
AEDPA was in effect and he contested his removability
4 No. 03-1850
at those proceedings, so he does not fall within this excep-
tion either.
Montenegro makes two other arguments attacking
IIRIRA’s applicability to his situation. First, he asserts
that the retroactive application of IIRIRA violates the ex
post facto clause. But the ex post facto clause does not
apply here because a removal proceeding is a civil action,
and the ex post facto clause applies only to criminal laws.
Flores-Leon v. INS, 272 F.3d 433, 440 (7th Cir. 2001).
Second, he says that the abolition of relief under § 212(c)
denied him equal protection. But he does not develop this
argument in any meaningful way, and we therefore do
not address it. See United States v. Hemmings, 258 F.3d
587, 593 n.2 (7th Cir. 2001).
Montenegro next argues that he was denied due proc-
ess because the IJ ordered him removed on the basis of
a conviction that he was still challenging on appeal. At the
time the IJ ordered Montenegro removed, he had two
petitions still pending—a writ of certiorari in the United
States Supreme Court and an appeal from the denial
of his post-conviction petition in the Illinois Appellate
Court—both of which were later denied.
Before the enactment of IIRIRA, the Supreme Court
required that a deportation proceeding be based on a
conviction that had sufficient “finality,” see Pino v. Landon,
349 U.S. 901 (1955); Will v. INS, 447 F.2d 529, 531 (7th Cir.
1971), which we interpreted to mean that the alien no
longer had any direct appeal pending, Mansoori v. INS, 32
F.3d 1020, 1024 (7th Cir. 1994). IIRIRA, however, treats
an alien as “convicted” once a court enters a formal judg-
ment of guilt. See 8 U.S.C. § 1101(a)(48)(A); Moosa v.
INS, 171 F.3d 994, 1008-09 (5th Cir. 1999). IIRIRA elimi-
nated the finality requirement for a conviction, set forth
in Pino, even for aliens who were found guilty before April
1, 1997. See IIRIRA § 322(c), Pub. L. No. 104-208, 110 Stat.
No. 03-1850 5
3009 (1996) (“The amendments made by subsection (a)
[including the definition of “conviction”] shall apply to
convictions and sentences entered before, on, or after the
date of the enactment of this Act.”); Moosa, 171 F.3d at
1009 (“There is no indication that the finality requirement
imposed by Pino, and this court, prior to 1996, survives the
new definition of ‘conviction’ found in IIRIRA § 322(a).”);
see also Griffiths v. INS, 243 F.3d 45, 50 (1st Cir. 2001).
Under IIRIRA, therefore, Montenegro’s conviction in April
1996 of an aggravated felony rendered him removable.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-22-04