Bonney v. Reno

• Court: District Court, S.D. New York
• Decided: July 14, 2020
• Docket: 1:00-cv-08270
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ──────────────────────────────────── DANE IAN BONNEY,

Plaintiff, 00-cv-8270 (JGK)

- against - ORDER

JANET RENO, ET AL.,

Defendants. ──────────────────────────────────── JOHN G. KOELTL, District Judge:

The Court received the attached letter from Mr. Boney, which the Court forwards to the Federal Defenders for any appropriate action. If the Federal Defenders has any conflict, it should advise the Court. SO ORDERED.

Dated: New York, New York July 14, 2020 /s/ John G. Koeltl John G. Koeltl United States District Judge CT aewelheny Morera Ole Yuka Hotta, lt te ant Lh Coesate 20 bibanbly a □□ 8

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT eve ewe eee ee weet eee ewe ez DANE IAN BONNEY, oe 6B □□□□ 5 3 BS. & □□□□□ Petitioner-Appellant, z □□□ aze O □□□□ -V.- Dit. No. 03-2949-pr Are 0 □□ ae . Qs □□ JOHN ASHCROFT, U.S, Attomey General, : □□ mS Wo □□□ = □ Respondent-Appellee. : ' et eee weet eee aX WREREAS, petitioner-appellant, Dane Ian Bonney (“Bonney”), a native and citizen of Trinidad, filed the above-captioned appeal from a September 9,'2003 judgment entered by the "United States District Court for the Sowhem Distiet of New York, which denied Bonney’s petition for a writ of habeas corpus (“habeas petition”) challenging his final ordex of removal; WHEREAS, on April 3, 1984, Bomney pleaded guilty to robbery with a deadly weapon in the Circuit Coust of the State of Maryland, County of Prince George, and was sentenced to 3 term of six years’ imprisonrocat, with all but 18 months suspended, and five yeare’ probation; HEREAS, on April 19, 1994, Bonney was convicted after jury trial in the Supreme Court of the State of New York, Kings County, of criminal sale of a conmolled substance, and was sentenced to a term of 7 to 15 years’ imprisonment; WHEREAS, ina decision dated April 30, 1998, the Board of Immigration Appeals (BLA) affirmed an October 17, 1997 decision of an Immigration Judge ("II"), which held, inter alia, that Booney had been rendered ineligible for relief under former § 212(c) of the Immigration and Nationality Act of 1952 (INA"), by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA"), Pub. L, No. 104-132, § 440(d), 119 Stat. 1214 (effective April 24, 1996),

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pursuant to the Attomey General's decision in Matter of Soriano, 21 I. & N. Dec. 516 (A.G. Feb. 21, 1997) (AEDPA § 440(d) applied to limit the availability of § 212(c) relief for any aliens who were not already in deportation proceedings as of AEDPA's April 24, 1996 effective date);

_ WHBREAS, the district court held that although Matter of Soriano had been overruled, in part, by the Supreme Court’s decision in INS v, St. Cyr, 533 U.S, 289 (2001) (repoal of § 212(c) relief impermissibly retroactive as applied to pre-ARDPA guilty pleas), and that § 212(c) relief remained available for Bonney's 1984 robbery conviction, such relief was not available for his 1994 jury trial conviction for criminal sale of a controlled substance pursuant to this Court’s decision in Rankine v, Reno, 319 F.3d 93 (2d Cir. 2003) (elimination of § 212(c) not impermissibly retroactive with respect to decision to stand trial as opposed to plead guilty); WHEREAS, the district court did not reach the Government's alternative argument that Bonney was independently ineligible for § 212(c) relief because at the time of the BIA’s decision, Bonney had served more than five years’ imprisonment for aggravated felonies if the terms of confinement for his 1984 and 1994 convictions were jisned: WHEREAS, during the pendency of Bonney's appeal of the district court’s denial of his habeas petition: L This Court issued its decision in Restrepo v, McElroy, 369 F.3d 627 (2d Cir. 2004) , which held that the elimination of § 212(c) relief would have an impermissible retroactive effect as to an alien who may have refrained from filing an affirmative § 212(c) application after his trial conviction and prior to AEDPA’s enactment; The Executive Office for Trignligeation Review issued regulations providing that, for the purpose of determining whether an alion is ineligible for § 212(c) relief

. Page 2 of 4

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under the five-year bar, the time an alien served for an aggravated felony (or felonies) obtained by guilty plea prior to November 29, 1990 would not be included in the calculation, see 8 C.F.R. § 1212.3(f)(4)(ii) (2004); and 3. This Court issued its decision in Edwards v. INS, 393 F.3d 299 (24 Cir. 2004), which held that prison time accrued for an aggravated felony conviction after the BIA wrongfully pretermitted an alien's application for § 212(c) relief under Matter of Soriano did not count for purposes of determining whether an alien is ineligible for § 212(c) pursuant to the five- year bar; WHEREAS, Bonney claims in his appeal to this Court that he is eligible for § 212(c) relief, notwithstanding his trial conviction, pursuant to Restrepo; and WHEREAS, at the time of the BIA’s affirmance of the IJ’s denial of Bonney’s application for § 212(c) relief pursuant to Matter of Soriano, Bonney had not accrued five years’ imprisonment for his 1994 conviction; IT IS HEREBY STIPULATED AND AGREED, by and between the parties that: 1, The above-captioned petition for review shall be and hereby is dismissed

_ With prejudice and without costs or attomey’s fees to any party, pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. 2. . The April 30, 1998 decision of the BIA shall be, and hereby is, vacated, and the matter remanded to the BIA, which, in turn shall remand the matter to an [J for a hearing on Bonney's application for § 212(c) relief and a decision on the merits. 3. The Government will arrange for Bonney’s travel to the United States for purpose of attending his § 212(c) hearing.

Page 3 of 4

Dated: New York, New York November 23, 2005

FEDERAL DEFENDERS OF NEW YORK, INC.

By: /) 9 2 ae D. LEIWANT, ESQ. 52 Duane Street, 10° Floor New York, NY 10007 Telephone No.: (212) 417-8742 Dated: New York, New York November __, 2005 MICHAEL J. GARCIA United States Attomey for the Southern District of New York Attorney for Respondent

By: ANDREW M. McNEELA Assistant United States Attorney 86 Chambers Street, 3d Floor New York, NY 10007 Telephone: (212) 637-2741

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U.S. Department of Justice Vecision of the board of Immigration Appeals Executive Office for Immigration Review Chmncy, Vins □□□ ree ee File: AO31 133 180 - New York, NY Date: MAR - 6 2009 In re: DANE IAN BONEBY a.k.a. Jan D. Bonney IN DEPORTATION PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Pro se APPLICATION: Section 212(c) waiver of inadmissibility

ORDER: The respondent, a native and citizen of Trinidad, appeals the Immigration Judge’s decision dated December 2, 2008, denying his application for a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c). The appeal will be dismissed. Regardless of the respondent’s eligibility for such discretionary relief, we find for the reasons set forth in the Immigration Judge’s decision that an exercise of discretion in favor of the respondent would not be warranted. Matter of Goldeshtein, 20 I&N Dec. 382 (BIA 1991); see Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); Matter of Marin, 16 I&N Dec. 581 (BIA 1978). Accordingly, the respondent’s appeal is dismissed.

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the United States, was out of the United States for more than five years, there are some unusual factual issues. The Court has considered how to deal with those factual issues, and I believe the best way, in the interest of justice and to be fair to the Respondent, is to essentially set that time aside for most pesposes. I aw not Lasiny any decision on tire fact chat tie Respondent having served seven years in New York State prison, then spent about seven years living in a different country from □ his close relatives. That would be weakening the Respondent's discretionary showing in this case based on a legal error through the Department of Justice, and that would clearly be wrong. It is necessary, to some extent, to take into account the fact that the Respondent lived in Trinidad for these years, but otherwise I've tried to set it aside from my decision, and we might say act as though it never really happened. [Not because I want to forget the error, but because I want the Respondent's case to be considered in the light it would be considered if he had not been iscaxenny! □□ deported, and then allowed to come back to the 0.8.] The Respondent is required to show that he deserves the relief he is seeking, the 212(c) waiver, as a matter of discretion. Ordinarily, we say that the Court has to balance all the positive factors that are shown in the record against the negative factors, and determine whether it's in the interest of the community, or the country, that the Respondent be allowed to remain in this country. A 31 133 180 4 December 2, 2008

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DANE IAN BONNEY, □

Petitioner, 00 Civ. 8270 (JGK) - against - QRDER at Asterney. General ache rere neerei iia Ss cee died. ae ow 2. Say □□ □□

er JOEN GC. ROMLAE; Oieteiet:< ae Be Oe RPG EAD) i □ RSENS SEUSS: TEMA DER EEE See ee ae eR ee □□ Petitioner Dane Ian Bonney, appearing pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This case has been assigned to this judge as related to Nicholas v. Reno, 97 Civ. 6892. . By Order dated May 15, 2000, Barry D. Leiwant, Esq., Attorney-in-Charge of The Legal Aid Society, Federal Defender Division, Appeals Bureau, was assigned in the interests of justice puroucnt tec le U.S.C. § 3006fe) (7) (RB) fo reapremant all pro se petitioners whose cases are accepted by the Court aw related to Nicholas. Therefore, having accepted OO Civ. 8270 as

related to Nicholas, the Court appoints Mr. Leiwant to represent the pro se petitioner Dane Ian Bonney in all matters relating to

his petition for a writ of habeas corpus. In order to preserve the Court's jurisdiction over this

case, the Court has previously ordered that the petitioner's removal or deportation is stayed until further order of the Court

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ursuant to this Court's Order of November 17, 1999,

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USCIS . 301 ROYCROFT DRIVE DURHAM,NC 27703 ART eye . ee U.S. Citizenship and REY) Immigration Services +s Ss, Sinn sty Monday, October 1, 2012 , BARBARA BONEY 279 DEER TRACK BURGAW NC 28425 Dear Barbara Boney: On 09/25/2012 you, or the designated representative shown below, contacted us about your case. Some of the key information given to us at that time was the following: Caller indicated they are: Applicant or Petitioner Attorney Name: Information not available Case type: 1130 Filing date: 05/04/2009 Receipt #: WAC-10-027-10902 Referral ID: T1B2691200083CSC Beneficiary (if you filed for someone else): Information not available Your USCIS Account Number (A-number): Information not available Type of service requested: Non-Delivery of Approval Notice The status of this service request is: Jon July 2, 2010, we created and mailed you an Approval Notice at the address we had on file at that time.] You have notified us that | you have not received it and the post office has not returned it to us. We must conclude that it has been lost. If you need a copy of | your approval notice for legal purposes, you will need to fle Form 1-824, Application for Action on an Approved Application or Petition. You can download this form from our website www.uscis.gov. Ifyou already have a National Visa Center (NVC) case number, or with the USCIS receipt number you already have, you can check on your case status by directly contacting the NVC by telephone at 603-334-0700 or via email at NVCINQUIRY @state.gov.

If you have any further questions, please cal! the National Customer Service Center at 1-800-375-5283. Please remember: By law, every person who is not a U.S. citizen and who is over the age of 14 must submit Form AR-11 AND notify this office of their change of address, within 10 days from when they move (persons in "A" or "G" nonimmigrant status are exempt from this requirement). To notify this office of a move, visit our website at; www.uscis.gov or call the National Customer Service Center at 1-800-375-5283. The Form AR-11 can be downloaded from our website or you can call the National Customer Service Center at 1-800-375-5283 and we can order one for you. Instructions for filing the Form AR-11, including mailing instructions, are included on the Form. U.S. Citizenship and Immigration Services

□ U.S. CIS - 10-01-2012 03:22 PM CDT - WAC-10-027-10902

— U. S. Department of Homeland Security AM? vent a Cx . oie) United States Citizenship and Immigration Services ra 301 Roycroft Drive BO otk Durham, NC 27703 -\\vVh yi = ok AM | ‘ \\ ye pened 6 □ Vy ra A Ob- FP[SAo0l07 0700S □□ A> / Date: June 14, 2010 / File Number: WAC1002710902 el OW pws BARBA. caja

BURGAW

.9e come to the office shown below at the time and nlace indicated in connection with an official maiter. OFFICE LOCATION 301 Roycroft Drive Durham, NC 27703 DATE AND HOUR FRIDAY JULY 2, 2010 AT 9:30 AM ASK FOR Upstairs Waiting Room

REASON FOR APPOINTMENT I-130 Petition for Immediate Relative BRING WITH YOU Any Requested Supporting Documents

ITIS IMPORTANT THAT VOU KEEP THIS APPOINTMENT AND BOING THIS LETTER WITH □□□□ If you are unable to do so, state you reason, sign below and return this letter to this office at once.

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