United States 2nd Circuit Court of Appeals Reports

WILSON v. GONZALES, 04-5869-pr(L) (2nd Cir. 12-7-2006)
William Woodrow Wilson, Petitioner-Appellee-Cross-Appellant,
v. Alberto Gonzales,[fn*] Attorney General of the United
States, Doris Meissner, Commissioner, Immigration and
Naturalization Service; Edward McElroy, New York District
Director, Immigration and Naturalization Service; Lynne
Underdown, New Orleans District Director, Immigration and
Naturalization Service; Immigration and Naturalization
Service, United States Department of Justice,
Respondents-Appellants-Cross-Appellees. No. 04-5869-pr(L),
04-5973-(XAP). United States Court of Appeals, Second
Circuit. Argued November 21, 2005. Decided December 7,
2006.

[fn*] Pursuant to Federal Rule of Appellate Procedure 43(c),
we have substituted Attorney General Alberto Gonzales for
former Attorney General Janet Reno as the respondent in
this case.

The Government appeals the granting of an immigration
habeas corpus petition by the United States District Court
for the Southern District of New York (Wood, J.) and the
Petitioner cross-appeals the District Court`s denial of his
request to apply for naturalization. The habeas corpus
petition is converted into a petition for review and said
petition is granted. The Petitioner`s cross-appeal is
dismissed as Petitioner failed to raise the issue of
naturalization eligibility before the Bureau of Immigration
Appeals.

Matthew L. Guadagno, New York, NY (Ruchi Thaker, Kerry W.
Bretz, Jules E. Coven, Chungmi Michelle Hua, on the brief,
and Bretz & Coven, LLP, of counsel), for
Petitioner-Appellee-Cross-Appellant.

Andrew M. McNeela, Assistant United States Attorney, New
York, NY, (Michael J. Garcia, United States Attorney for
the Southern District of New York, Kathy S. Marks,
Assistant United States Attorney, of counsel, for
Respondents Appellants-Cross-Appellees.

Lee Gelernt, American Civil Liberties Union Foundation,
Immigrants` Rights Project, New York, NY (Omar C. Jadwat;
Lucas Guttentag and Jennifer C. Chang, Oakland, CA; and
Trina A. Realmuto and Mary Kenney, American Immigration Law
Foundation, Washington, DC, of counsel), for American
Immigration Law Foundation and the American Civil Liberties
Union Foundation as Amici Curiae in support of petitioner.

Before JACOBS, Chief Judge, OAKES and WALKER, Circuit
Judges.

OAKES, Senior Circuit Judge.

The United States appeals and
Petitioner-Appellee-Cross-Appellant William Woodrow Wilson
(“Wilson”) cross-appeals from a November 17, 2004, judgment
of the United States District Court for the Southern
District of New York (Wood, J.), granting habeas relief to
Wilson and remanding the case to the Bureau of Immigration
Appeals (“BIA”) for further consideration regarding
Wilson`s eligibility for relief under the repealed section
212(c) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1182(c).

For the reasons stated below, Wilson is required to make
an individualized showing that he decided to forgo the
opportunity to affirmatively file for section 212(c) relief
in reliance on his ability to file for such relief at a
later date. Therefore, the case is remanded to the BIA for
further remand so that relevant findings of fact on the
issue of such individualized reliance can be made. However,
Wilson`s cross-appeal regarding the district court`s ruling
on his eligibility to apply for naturalization is dismissed
for lack of appellate jurisdiction.

I. Background

A. Wilson`s Relevant History

On November 5, 1967, at four years old, Wilson, a native
and citizen of Jamaica, was admitted into the United States
as a lawful permanent resident. As a young man, in New York
State Supreme Court, Queens County, on October 21, 1986,
Wilson was convicted by a jury of robbery in the second
degree and criminal possession of stolen property in the
third degree. On November 12, 1986, he was sentenced to
concurrent prison terms of two to six years for the robbery
count and one year for the possession count. Wilson served
twenty-seven months` imprisonment. The parties agree that,
under applicable law at the time of these convictions,
neither crime was considered an aggravated felony;
therefore, Wilson was not considered deportable.

On February 13, 1987, also in New York State Supreme Court,
Queens County, Wilson pleaded guilty to assault in the
first degree. Neither Wilson nor the Government elaborates
on the underlying facts of this crime. For the assault
conviction, Wilson was sentenced to a term of twenty-eight
months` to seven years` imprisonment. The term ran
concurrently with the sentence Wilson was already serving.

The record also reveals that, subsequently, on April 15,
1993, Wilson was convicted of criminal possession of a
weapon. The Government merely mentions this conviction in a
footnote, whereby Wilson admitted to the conviction during
the course of his removal hearing.

In the fall of 1997, Wilson traveled from the United States
to Jamaica for a “brief vacation.”[fn1] On October 31,
1997, Wilson returned to the United States. On arrival at
the John F. Kennedy Airport (“JFK”) in New York City,
Wilson presented himself for inspection as a returning
lawful permanent resident. An immigration inspector
determined that Wilson was inadmissible because of his
“lengthy criminal record.” Wilson was, therefore, taken
into custody and was temporarily detained without bond at
201 Varick Street, New York, New York.