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Some 21 years after receiving probation for a drug offense he claims he never committed, Jerry Arias-Agramonte went to the Dominican Republic to bury his father and re-entered the United States at John F. Kennedy International Airport. Although a resident of the United States for 30 years, he was arrested for being an inadmissible alien and then detained for the past 19 months at an immigration facility in York, Pa. Now, a federal judge has granted a habeas corpus petition and ordered that Arias-Agramonte be released by 5 p.m. today unless the government obtains a stay from the 2nd U.S. Circuit Court of Appeals. Southern District of New York Judge Robert W. Sweet said, in Arias-Agramonte v. Commissioner of INS, 00 Civ. 2412, that Board of Immigration Appeals erroneously ruled that Arias-Agramonte was not entitled to relief under immigration law. The issue in the case, one that has divided the federal appeals courts and has been heavily litigated in the Second Circuit, is whether Section 212(c), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), bars district court review of removal orders. The arrest that landed Arias-Agramonte in detention happened in 1977, when police raided a restaurant during a buy-and-bust operation and found him in possession of a marked $50 bill — which Arias-Agramonte later claimed he had because a customer had asked him to make change. In return for two years’ probation, he pleaded guilty to criminal sale of a controlled substance in the fourth degree — a felony. Thus, when he got off the plane at JFK in 1998, he was detained under Section 212(a)(2)(i)(II) of the Immigration and Nationality Act of 1952 — as an alien who is or has been an illegal trafficker in drugs. In the 21 years between, Arias-Agramonte, a Bronx resident, had raised six children and worked as a Spanish language interpreter, often in the state court system. An immigration law judge who reviewed the case found that Arias-Agramonte’s version of events surrounding the drug bust to be credible, and, after reviewing his work and family history, said, “his equities are unusual and outstanding.” The judge said, “It would be a great injustice not to grant him a second chance by means of a [Section]212(c) waiver.” However, the Philadelphia District Director wrote a letter to the Board of Immigration Appeals (BIA) in September 1999, arguing that “based upon his criminal conviction and the nature of his arrest, it is deemed that he presents a continuing danger to the safety of the public and the community.” Armed with this letter, the BIA reversed the immigration judge and found that he was not eligible for any form of relief from removal. On Arias-Agramonte’s habeas corpus petition, the government contended that Sweet lacked jurisdiction, but the judge disagreed. PENDING QUESTIONS The government then asked Sweet to defer consideration of the petition and place the case on the suspension docket pending the resolution of three cases that are currently before the Second Circuit. Sweet wrote that the issues currently awaiting resolution before the Second Circuit are: 1) the extent to which the Act as amended by the IIRIRA in 1997 bars judicial review of removal orders issued against specific categories of criminal aliens, such as Arias, including whether jurisdiction to hear certain questions of law survives the jurisdictional bar; 2) whether judicial review over any challenges that survive the jurisdictional bar is channeled exclusively to the circuit courts on direct petition for review or may be brought by habeas corpus petition under 28 USC Section 2241 in district court; and 3) whether Section 212(c) relief is available to aliens in removal proceedings whose criminal conduct preceded IIRIRA’s effective date. Sweet refused to suspend the case. While a split has developed among the circuits over whether the IIRIRA eliminates habeas jurisdiction over Arias-Agramonte’s petition, Sweet said Second Circuit precedent “would seem to compel it follow the course of the Third and Ninth Circuits.” Both of those courts found that IIRIRA had not been intended to strip the district courts of habeas jurisdiction. Sweet went on to find that the BIA wrongly concluded that the IIRIRA retroactively eliminated discretionary relief under Section 212(c). And he agreed with the attorney for Arias-Agramonte that Section 212(c) relief “remains available for aliens when the act forming the basis for the removal proceeding occurred prior to the April 1, 1997,” the enactment of the IIRIRA. Ismael Gonzalez represented Arias-Agramonte. Assistant United States Attorney Krishna R. Patel represented the government.

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