Opinion
No. 3-01-CV-0713-BD (X)
February 13, 2002
MEMORANDUM OPINION AND ORDER
Petitioner Syed Hosain Ali has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application is denied.
I.
Petitioner is a native and citizen of India. (Resp. App. at 1). He entered the United States lawfully as a non-immigrant in 1984 and became a permanent resident alien through marriage to a U.S. citizen on March 6, 1990. ( Id.). Although still legally married, petitioner and his wife separated in 1996. ( Id. at 23).
On May 24, 1998, petitioner was charged with assaulting his live-in girlfriend, Sandra Bogue. ( Id. at 8). He pled guilty to this Class A misdemeanor offense and was placed on 12-months deferred adjudication probation. ( Id. at 3). While on probation, petitioner was arrested for a second assault on Bogue. ( Id. at 11). His probation was revoked and petitioner was sentenced to 253 days in jail. ( Id. at 7). A final judgment was entered on June 6, 1999. ( Id.). Based on this conviction, an immigration judge ordered petitioner removed to India. The judge also denied his request for cancellation of removal. ( Id. at 20-28). Petitioner appealed this decision to the Board of Immigration Appeals. The Board affirmed. In re Ali, No. A29 573 979 (BIA Feb. 28, 2000). Petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2241.
Section 227(a)(2)(E)(i) of the Immigration and Nationality Act ("INA") provides, in relevant part:
Any alien . . . in and admitted to the United States shall, upon order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:
II.
Petitioner does not contest the fact that he can be deported based on his misdemeanor conviction for domestic violence assault. (Hab. Pet. at 6, ¶ 15). Rather, petitioner maintains that the immigration judge abused his discretion in denying his request for cancellation of removal.
Respondent argues that this Court lacks jurisdiction to review the removal order pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. 104-208, 110 Stat. 3009. Alternatively, respondent contends that petitioner is not entitled to habeas relief. The Court will address the jurisdictional issue first.
A.
The IIRIRA attempts to limit, or in some cases eliminate, judicial review of removal orders issued by immigration officers. See 8 U.S.C. § 1252(a) (b). This statute provides, in relevant part:
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.Id. § 1252(g). In several reported decisions, the Fifth Circuit has held that this statute deprives a federal court of habeas jurisdiction to review orders of removal against aliens convicted of aggravated felonies. See, e.g. Finlay v. I.N.S., 210 F.3d 556, 558 (5th Cir. 2000); Max-George v. Reno, 205 F.3d 194, 199 (5th Cir. 2000), vacated, 121 S.Ct. 2585 (2001). However, these decisions were effectively overruled by the United States Supreme Court in I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2287, 150 L.Ed.2d 347 (2001) (statutory changes wrought by IIRIRA did not repeal habeas jurisdiction under 28 U.S.C. § 2241). See also Cano-Miranda v. Ashcroft, 262 F.3d 477, 478 (5th Cir. 2001) (recognizing that St. Cyr overruled prior case law); Fabuluje v. INS, 2001 WL 1597812 at *2 (N.D. Tex. Dec. 11, 2001) (Kaplan, M.J.). Accordingly, this Court has jurisdiction to consider the claims raised by petitioner.
B.
Petitioner maintains that the immigration judge abused his discretion in denying his request for cancellation of removal under Section 240A of the INA, 8 U.S.C. § 1229b. This statute provides, in relevant part:
Cancellation of removal is available to an alien who:
(1) has been an alien lawfully admitted for permanent residence for not less than 5 years;
(2) has resided in the United States continuously for 7 years after having been admitted in any status; and
(3) has not been convicted of any aggravated felony.
8 U.S.C. § 1229b(a). As petitioner correctly notes, cancellation is discretionary with the Attorney General. In exercising this discretion, the immigration judge should consider: (1) family ties within the United States; (2) length of residence in this country; (3) hardship to petitioner or his family if relief is not granted; (4) service in the United States armed forces; (5) employment history; (6) the existence of business or property ties; (7) evidence of value and service to the community; (8) proof of rehabilitation if a criminal record exists; and (9) other evidence attesting to good character. These factors are weighed against: (1) the nature and underlying circumstances of the grounds for exclusion or removal; (2) additional violations of the immigration laws; (3) the existence, gravity, and recency of any criminal record; and (4) other evidence of bad character or undesirability of the petitioner as a permanent resident. See Yepes-Prado v. I.N.S., 10 F.3d 1363, 1366 (9th Cir. 1993), citing In re Edwards, 20 I N Dec. 191, 195, (BIA 1990). "[A]s the negative factors grow more serious, it becomes incumbent upon the alien to introduce additional offsetting favorable evidence, which in some cases may have to involve unusual or outstanding equities." Edwards, 201 N Dec. at 195, citing In re Marin, 161 N Dec. 581, 582-83 (BIA 1978).
Petitioner contends that the immigration judge failed to consider these factors and based his decision on reasoning that amounts to nothing more than "a patchwork of racism and cruelty." (Hab. Pet. at 8, ¶ 18). The Court disagrees. Petitioner was given a full and fair hearing before an immigration judge. At this hearing, petitioner testified that he came to the United States in 1984 and has lived here for 17 years. He married an American citizen in 1988, but they are currently separated with little prospect of reconciliation. Petitioner's mother, brother, and two sisters all reside in the United States. Another brother remains in India. His father passed away in 1999. Petitioner has worked as a cab driver and a convenience store clerk while in this country. However, he has been unable to work on a regular basis since early 1998 due to medical problems, including pneumonia, hepatitis, and high blood pressure. Petitioner helps care for his three nephews and his 64-year old mother, who also suffers from serious health problems. (Hab. Pet. at 4-6, ¶¶ 8-14 Exhs. 34).
At the conclusion of the hearing, the immigration judge denied petitioner's request for cancellation of removal. The judge noted that petitioner has been in the United States for more than 15 years and has substantial family ties to the community. He also acknowledged petitioner's medical problems. However, the judge concluded that these factors were outweighed by petitioner's history of family violence, failure to accept responsibility for his actions, unstable work history, and lack of community service. Some of the judge's findings were particularly scathing:
In sum, the Court, quite frankly, thinks the respondent is more of a parasite on this nation than he is a contributor to it and he admits he hasn't paid taxes in three years and hasn't held a steady job for some time. He spends more time living with his sister than he does out on his own even though he's 41 years of age and has some level of education behind him. The education he received, however, in India, he's not putting to practice here in the United States and has been doing unskilled labor that virtually anyone who can drive a vehicle can get.
* * * *
Again, the man, quite frankly, in the Court's opinion has made no contribution to this country and I think even his family members are going to be better off without him than having him here. This is a somewhat devastating judgment to come to but the Court has come to it after listening to testimony in this case for some time and reviewing the documents in the file. The respondent's been here for a long time and he has nobody to speak for him except his sister. And his former spouse or current spouse, as they've never gotten divorced, and his girlfriend are not here for him. And, the Court thinks, quite frankly, that this is a pretty good indicator that the respondent has, as said earlier, been something of a gypsy here and has been sucking all the benefits available here in the United States and has given noting whatsoever back to the community.
(Resp. App. at 26-27). While petitioner takes issue with these findings and some of the language used by the immigration judge, it is apparent that the judge gave full consideration to the evidence presented and to the equities involved. Under these circumstances, petitioner has failed to state a cognizable claim for federal habeas relief. Toscano-Gil v. Trominski, 210 F.3d 470, 474 (5th Cir. 2000). See also Carranza v. INS, 277 F.3d 65, 71-72 (1st Cir. 2002) (noting that alien has constitutional right to process but not to particular result); Sol v. I.N.S., 274 F.3d 648, 651 (2d Cir. 2001) (section 2241 jurisdiction does not extend to review of discretionary determinations by INS).
For these reasons, petitioner's application for writ of habeas corpus is denied.
SO ORDERED.
JUDGMENT
For the reasons stated in the Memorandum Opinion and Order dated February 13, 2002, petitioner's application for writ of habeas corpus is denied. This case is dismissed with prejudice.
SO ORDERED.
* * * *
— Any alien who at any time after admission is convicted of a crime of domestic violence . . . is deportable. For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of Title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.8 U.S.C. § 1227(a)(2)(E)(i).