Opinion
Civil Action No. 04-0493.
July 7, 2004
MEMORANDUM
Before the Court is petitioner Jean Rodil Dorremil's request for writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Petitioner challenges his final order of removal from the United States and asserts that withholding or deferral of removal is appropriate under 8 U.S.C. § 1231(b)(3)(A) and Article 3 of the Convention Against Torture (CAT). For the reasons that follow, the petition will be denied.
I. BACKGROUND
Petitioner, a citizen and native of Haiti, was convicted of the illicit trafficking in a controlled substance, an "aggravated felony" as defined in 8 U.S.C. § 1101(a)(43)(b). On January 23, 2003, the Immigration and Naturalization Service (INS) served petitioner with a notice to appear, alleging that he was subject to removal as an aggravated felon, pursuant to 8 U.S.C. § 1227(a) (2) (A) (iii). An Immigration Judge ("IJ") found petitioner removable as charged by "clear and convincing evidence." On April 3, 2003, petitioner's application for relief from removal was denied. The Board of Immigration Appeals ("BIA") affirmed the decision on January 14, 2004. The petitioner now renews his habeas petition before this Court. Petitioner argues that the IJ's decision not to withhold his removal, pursuant to the CAT, was not supported by "substantial evidence," that the BIA abdicated its responsibility by affirming the IJ's decision without opinion, and that the ruling by the IJ that petitioner was ineligible for withholding of removal was erroneous.
Petitioner's "aggravated felony" conviction triggered the application of Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, qualifying the petitioner for deportation. 8 U.S.C. § 1227(a) (2) (B) (I).
Petitioner's original habeas petition was denied by this Court on October 14, 2003, without prejudice, for failure to exhaust administrative remedies. Petitioner subsequently appealed the IJ's decision to the BIA, thus exhausting his administrative remedies.
II. JURISDICTION AND SCOPE OF REVIEW
Federal district courts have jurisdiction to entertain habeas corpus petitions filed under 28 U.S.C. § 2241 by aliens subject to removal. Chong v. Dist. Dir., INS, 264 F.3d 378, 382 (3d Cir. 2001). However, a district court's review of administrative immigration decisions under § 2241 is limited. The Third Circuit, in the recent decision of Bakhtriger v. Elwood, held that § 2441 does not provide the district court with jurisdiction to review discretionary determinations, sufficiency of the evidence, or factual findings of the INS. 360 F.3d 414, 420 (3d Cir. 2004). Instead, the scope of review under § 2241 is limited to questions of constitutional and statutory law as well as claims of legal error. Id. at 417.
III. ANALYSIS
A. CAT Claim.
This Court has jurisdiction to hear petitioner's challenge to the denial of his application for asylum under the CAT. See Ogbudimpkpa v. Ashcroft, 342 F.3d 207, 221 (3d Cir. 2003) (holding that district courts may exercise habeas jurisdiction over petitions alleging a violation of the CAT). However, as noted, petitioner's claim that the IJ's decision was not supported by "substantial evidence" is only reviewable to the extent that petitioner alleges that the IJ committed legal error in its determination. See Bakhtriger, 360 F.3d at 425. The IJ's decision to deny petitioner's application for asylum, withholding, and relief was a factual determination, pursuant to the standards set forth in Article 3 of the CAT; therefore, the IJ did not commit legal error. In arguing that the facts of his case indicate that he was "more likely than not" to be tortured if returned to Haiti, petitioner asks this Court to conduct a review that has been specifically barred byBakhtriger. 360 F.3d at 425 (holding that 18 U.S.C. § 2441 does not embrace review of the sufficiency of evidence of an immigration judge's decision). Thus, petitioner will not be granted relief on this ground.
An alien must demonstrate that it is "more likely than not" that he would be tortured if removed to a particular country.See 8 C.F.R. 208.16(c)(2). The IJ made an individualized determination that petitioner was not "more likely than not" to be tortured if returned to Haiti and that he was therefore ineligible for relief under the Convention.
B. Challenge to the BIA affirmation.
Petitioner's argument that the BIA abdicated its appellate responsibilities by affirming the IJ's decision without opinion is meritless. The Third Circuit has held that the BIA may lawfully issue an affirmance without opinion. See Dia v. Ashcroft, 353 F.3d 228, 234 (3d Cir. 2003) (holding that the Attorney General's implementation of the streamlining regulations and the BIA's issuance of an affirmance without opinion does not violate the Constitution). To the extent that the petitioner alleges that the BIA decision violated his due process rights, the argument will also fail. See Cun Liu v. Ashcroft, No. 02-4334, 2003 U.S. App. LEXIS 12697, at *9 (3d Cir. Dec. 4, 2003) (holding that a due process attack on the affirmance without opinion procedure has essentially been foreclosed by Dia).
C. "Particularly Serious Crime" Exception.
Petitioner's last basis for habeas relief asserts that the IJ improperly disqualified him from withholding of removal. Petitioner contends that, because of his well-founded fear of future persecution if he were returned to Haiti, he should not be subject to removal and that his aggravated felony conviction did not qualify as a "particularly serious crime."
An alien convicted by a final judgement of a "particularly serious crime" is not eligible to pursue an application for asylum or a withholding of deportation. See 8 U.S.C. § 1231(b)(3)(B)(ii). The IJ denied petitioner's claim for asylum, ruling that petitioner's drug trafficking offense constituted a "particularly serious crime." "When an alien has been convicted of an aggravated felony involving a prison sentence of less than five years, the Attorney General has discretion to determine whether the felony qualifies as a "particularly serious crime." 8 U.S.C. § 1231(b)(3). The Attorney General has held that "aggravated felonies involving unlawful trafficking in controlled substances presumptively constitute `particularly serious crimes.'" In re Y-L, 23 I. N. Dec. 270, at *11 (BIA 2002). Because the IJ's finding that petitioner had not been convicted of a particularly serious crime was discretionary, it is not subject to review by this Court. Discretionary factual determinations by the IJ are not reviewable in § 2241 proceedings. Bakhtriger, 360 F.3d at 420.
II. CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241, will be denied.
ORDER
AND NOW, this 2nd day of July, 2004, upon consideration of the petition for writ of habeas corpus (doc. no. 1) and the Government's response (doc. no. 9) thereto, it is hereby ORDERED that the petition is DENIED and the case marked CLOSED.It is FURTHER ORDERED that the order staying the deportation proceedings is VACATED.