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Second Circuit Judge Jose A. Cabranes has seen enough of, but apparently not the end of, the marathon deportation case of David Anthony Drax. Deciding an issue he said “vividly illustrates the labyrinthian character of modern immigration law,” Cabranes and his fellow panel members affirmed a grant of habeas corpus relief to Drax, but with at least one more chapter to follow. Drax, a lawful permanent resident of the United States since 1984, was ordered deported to Trinidad and Tobago after he pleaded guilty to attempted weapons possession in 1993 and fifth-degree sale of a controlled substance in 1996. An immigration judge ordered him deported in 1997; his appeal to the Board of Immigration Appeals (BIA) was rejected in 1998 and again in 1999. He then filed a petition for a writ of habeas corpus in the Eastern District. His case, Cabranes said, demonstrates the “maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the government and petitioners alike.” “The inscrutability of the current immigration law system, and the interplay of numerous amendments and alterations to that system by Congress during the pendency of this case, have spawned years of litigation, generated two separate opinions by the District Court, and consumed significant resources of this court,” Judge Cabranes said. “With regret and astonishment,” the judge added, the circuit was still unable to “definitively” decide the case of Drax v. Reno, 02-2047. The 2nd U.S. Circuit Court of Appeals was forced to remand the case to Eastern District Judge Jack B. Weinstein, and then it will go on to the BIA and an immigration judge for further proceedings. At Drax’s pro se appearance before the immigration judge in 1997, he asked whether he qualified for “any type of waiver” from deportation. The judge replied that there was no relief available for him under � 212(c) of the Immigration and Nationality Act for his drug conviction because retroactive relief was barred by � 440(d) of the Antiterrorism and Effective Death Penalty Act. The judge also told Drax that he did not qualify for relief from deportation under � 245(a), which is an adjustment of status known as “ Gabryelsky relief.” It is available to aliens with weapons convictions, but not those with drug convictions. Following the BIA’s dismissal of his appeal, Weinstein granted Drax’s habeas petition in a written opinion in October 2001 and, after the government asked him to amend his ruling, issued a second opinion one month later. Weinstein rejected Drax’s argument for Gabryelsky relief. But he also found that the attempted weapons conviction did not render him deportable because he had pleaded guilty before the 1994 enactment of the Immigration and Nationality Technical Corrections Act of 1994 (or INTCA), � 203, which made “attempted” weapons possession a deportable crime. Weinstein found Drax could seek relief from deportation through � 212(c) for his drug conviction. WRIT GRANTED ON APPEAL On the appeal, Cabranes said the circuit was granting the writ on alternative grounds, but pausing to praise Weinstein for his “heroic efforts” in dissecting and analyzing Drax’s case and the state of immigration law. “We are mindful that district courts are severely constrained in the time and resources they can allocate to any one case and that it is frequently the case that the Court of Appeals, at its relative leisure, can devote the excessive time required to penetrate in part this dark thicket of the law,” he said. Cabranes said the circuit was ruling that “INTCA Sec. 203 operates retroactively to render Drax’s attempted weapons conviction a deportable offense for which Section 212(c) relief is not available.” He then turned to the Matter of Gabryelsky, a 1993 BIA decision involving a person who is eligible for � 212(c) relief from deportation for a drug conviction but ineligible for a � 245(a) adjustment of status, and yet has a weapons conviction that makes him eligible for � 245 (a) adjustment of status, but ineligible for � 212(c) relief. “ Gabryelsky relief operates under the legal fiction that Sec. 212(c) and Sec. 245(a) procedures occur exactly at the same time, thereby eliminating the obstacle to relief otherwise posed by the other conviction,” Cabranes said. He said the immigration judge “erroneously indicated to Drax” that he had no discretion to allow him to seek “any type of waiver.” The result was that “Drax was deprived of the opportunity to seek a favorable exercise of discretion through the Gabryelsky process that could have prevented his deportation,” the court said. It said that the writ should be granted so Drax could petition the immigration judge “simultaneously for discretionary relief under sec. 212(c) and Sec. 245(a).” Given the “extended prolongation” of the proceedings in the case, the 2nd Circuit directed the immigration bureau of appeals and the immigration judge to expedite handling of the case. Judge Joseph M. McLaughlin and Southern District Judge Gerard E. Lynch, sitting by designation, joined in the opinion. Assistant U.S. Attorneys Scott Dunn and Varuni Nelson, and Alison Drucker of the Office of Immigration Litigation represented the government. Bryan Lonegan, Janet Sabel, Scott Rosenberg and Helaine Barnett represented Drax.

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