United States Court of Appeals
For the First Circuit
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No. 98-2055
WILTON K. ALMON,
Plaintiff, Appellee,
v.
JANET RENO, ET AL.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Torruella, Chief Judge,
Hill* and Cyr, Senior Circuit Judges.
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Alison Marie Igoe, Trial Attorney, U.S. Department of Justice,
Civil Division, Office of Immigration Litigation, David W. Ogden,
Acting Assistant Attorney General, U.S. Department of Justice, Civil
Division, and Christopher C. Fuller, Senior Litigation Counsel, U.S.
Department of Justice, Civil Division, Office of Immigration
Litigation, on supplemental brief for appellants.
Randy Olen on supplemental brief for appellee.
* Of the Eleventh Circuit, sitting by designation.
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May 31. 2000
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TORRUELLA, Chief Judge. This opinion resolves all remaining
issues related to the petition for writ of habeas corpus filed by
Wilton K. Almon on June 19, 1998. Almon was charged by the Immigration
and Naturalization Service ("INS") as deportable as an aggravated felon
pursuant to § 241(a)(2)(A)(iii) of the Immigration and Nationality Act
("INA"). See 8 U.S.C. § 1251(a)(2)(A)(iii). 1 The charge of
deportability was based on three convictions: (1) a September 16, 1996
conviction for breaking and entering a dwelling;2 (2) a January 9, 1995
conviction for possession of a stolen motor vehicle; and (3) a January
9, 1995 conviction for assault with a dangerous weapon. All of Almon's
convictions were the result of guilty pleas.
Because Almon entered immigration proceedings after April 24,
1996, he was deemed ineligible for a § 212(c) waiver of deportation by
operation of § 440(d) of the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, 1277
(1996). The district court granted Almon's petition for a writ of
habeas corpus. See Almon v. Reno, 13 F. Supp. 2d 143, 147 (D. Mass.
1998). It held that the application of AEDPA would violate Almon's
right to equal protection by irrationally denying him eligibility for
1 This provision has been recodified at 8 U.S.C. § 1227(a)(2)(A)(iii).
2 The Order to Show Cause issued by the INS misstates this offense as
"breaking with felonious intent." The record shows that Almon was
charged under R.I. Gen. Laws § 11-8-2, Unlawful Breaking and Entering
of a Dwelling House.
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§ 212(c) relief because he was in deportation proceedings when that
same relief was available to aliens in exclusion proceedings. See id.
at 145. On appeal, we came to the contrary conclusion that AEDPA's
restriction of relief for criminal aliens in deportation proceedings
furthered Congress's "legitimate legislative goal of expediting the
deportation of criminal aliens currently residing within our borders."
Almon v. Reno, 192 F.3d 28, 32 (1st Cir. 1999). Accordingly, on
September 21, 1999, we issued an opinion reversing the district court's
grant of the petition for a writ of habeas corpus. See id.
After we denied Almon's petition for rehearing, he requested
that we remand the case to the district court for resolution of his
alternative claim that the retroactive application of § 440(d) of AEDPA
to his case violated his constitutional right to due process. At the
time, we had not yet resolved whether AEDPA's ban on § 212 waivers
applies to aliens with pre-AEDPA convictions. See Wallace v. Reno, 194
F.3d 279, 287 (1st Cir. 1999). Viewing the matter as a question of
law, we retained jurisdiction and permitted the parties to brief the
remaining issues of (1) whether Almon's September 1996 conviction
qualifies as an aggravated felony for purposes of INA
§ 241(a)(2)(A)(iii) and (2) if not, whether § 440(d) of AEDPA should be
applied to Almon's pre-AEDPA convictions.
In the interim, however, this Court issued an opinion that
addressed the precise issue of the applicability of AEDPA's ban on §
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212(c) waivers to pre-AEDPA convictions. In Mattis v. Reno, No. 99-
1429, 2000 WL 554957, at *6 (1st. Cir. May 8, 2000), we held that "§
212(c) relief continues to be available for deportable aliens whose
requisite criminal convictions pre-dated AEDPA, if, and only if, the
alien actually and reasonably relied on the availability of § 212(c)
relief when he pled guilty to or did not contest the criminal charges."
Further, we held that "questions of whether there was actual reliance
and whether it was reasonable are questions of fact to be resolved by
the IJ [Immigration Judge]." Id. at *8.
There is no dispute that Almon's 1995 conviction for assault
with a dangerous weapon qualifies as a "crime of violence" under 18
U.S.C. § 16 and, therefore, that it is an aggravated felony under the
INA.3 Thus, the only issue before this Court is whether Almon actually
3 Almon was sentenced to four years in prison after he was convicted
of assault with a dangerous weapon in violation of R.I Gen. Laws § 11-
5-2. Effective September 30, 1996, the definition of aggravated felony
was amended to include "a crime of violence (as defined in section 16
of Title 18 . . .) for which the term of imprisonment imposed
regardless of any suspension of imprisonment is at least one year."
INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1997). Under
title 18 of the Federal Criminal Code, a "crime of violence" refers to:
(a) an offense that has as an element the use,
attempted use, or threatened use of physical
force against the person or property of another,
or
(b) any other offense that is a felony and that,
by its nature, involves a substantial risk that
physical force against the person or property of
another may be used in the course of committing
the offense.
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and reasonably relied on the potential eligibility for § 212(c) relief
when he entered his plea. See id. at *6.
We find Mattis instructive. There, we considered the appeal
of an alien who had been deemed deportable based on five convictions,
all of which qualified as either aggravated felonies or controlled
substance offenses. His application for § 212(c) relief was denied due
to his pre-AEDPA aggravated felony convictions. See id. at *2.
Although we created a new rule providing that an alien may be eligible
for § 212(c) relief under certain circumstances, we declined to remand
Mattis's case to the INS for further findings. We concluded that no
injustice to Mattis would result because (1) he waived his claim by
failing to raise it before the Board of Immigration Appeals or the
district court, and (2) there was nothing in the record to suggest that
Mattis had a colorable claim of actual and reasonable reliance. See
id. at *9.
The second rationale is applicable to the facts herein. Any
claim that Almon actually and reasonably relied on the availability of
§ 212(c) relief is untenable when one considers that he pleaded guilty
to three crimes in less than two years, at least two of which are
arguably aggravated felonies. As we recognized in Mattis, "[w]ith each
succeeding guilty plea . . . any argument that the plea was in actual
reliance on the availability of § 212(c) relief becomes more and more
18 U.S.C. § 16.
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tenuous." Id. Not only is it less believable with each guilty plea
that Almon in fact relied on his potential eligibility for relief from
deportation, but reliance under these circumstances would have been
unreasonable. Moreover, conspicuously absent from Almon's supplemental
brief is any contention that he actually relied on his potential
eligibility for § 212(c) relief when he entered his pleas.
Because we have no reason to conclude that Almon has a
"colorable claim of actual and reasonable reliance of the sort we
recognized by our new rule," we hold that § 440(d) of AEDPA bars
§ 212(c) relief in this case. Id. As the existence of Almon's
aggravated felony conviction for assault with a dangerous weapon
adequately supports the BIA's decision to dismiss petitioner's appeal
because he was ineligible for § 212(c) relief, we need not resolve
whether Almon's September 1996 conviction constitutes an additional
aggravated felony.
CONCLUSION
We deny the petitioner's request to remand the case to the
district court and we vacate the stay of deportation.
SO ORDERED.
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