Opinion
No. 01 Civ. 5545 (SAS)
February 7, 2002
Silvano Hernandez-Osoria, Hawley, Pennsylvania, Plaintiff (Pro Se).
Megan L. Brackney, Assistant United States Attorney, New York, New York, for the Government.
OPINION ORDER
Pro se petitioner Silvano Hernandez-Osoria filed a petition for a writ of habeas corpus under section 2241, Title 28 of the United States Code ("section 2241"). In his petition, Hernandez-Osoria argues that the Board of Immigration Appeals ("BIA") erred in finding that he is ineligible for a waiver of inadmissibility pursuant to section 212(h) of the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1182(h) (Supp. 1998) ("section 212(h)"). Hernandez-Osoria also challenges the BIA's denial of his motion to reopen his case to permit him to apply for withholding of removal pursuant to the Convention Against Torture ("CAT"). For the following reasons, Hernandez-Osoria's petition is dismissed.
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, § 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), Pub.L. No. 105-277, Div. G, 112 Stat. 2681, 2681-821 (Oct. 21, 1998) ("CAT" or "Convention").
References to "Rec." are to the Certified Administrative Record of Hernandez-Osoria's removal proceedings, as compiled and certified by the Executive Office for Immigration Review of the United States Department of Justice. A copy of this Record is annexed as Exhibit A to the response filed by the Government pursuant to 28 U.S.C. § 2243.
A. Hernandez-Osoria's Immigration and Criminal History
In July 1994, Hernandez-Osoria, a native and Citizen of the Dominican Republic, entered the United States as a non-immigrant visitor with permission to remain in the United States for a temporary period not to exceed six months. Rec. at 63, 116.
On March 21, 1997, in the Supreme Court of New York, Bronx County, Hernandez-Osoria was convicted of attempted criminal sale of a controlled substance (cocaine) in the third degree and sentenced to five years probation. Rec. at 76-82. On November 7, 1997, in the Supreme Court of New York, Queens County, Hernandez-Osoria was convicted of attempted criminal possession of a controlled substance (cocaine) in the fourth degree and sentenced to three months imprisonment. Rec. at 83-84.
B. Hernandez-Osoria's Removal Proceedings
On December 12, 1997, the I.N.S. served Hernandezosoria with a Notice to Appear alleging that he was subject to removal as an alien who has remained in the United States without authorization for longer than permitted. Rec. at 115-16. See 8 U.S.C. § 1227(a)(1)(B) (Supp. IV 1998). On January 29, 1998, the I.N.S. served Hernandez-Osoria with "Additional Charges of Inadmissibility/Deportability" alleging that he was also removable as an alien who has been convicted of an aggravated felony and a controlled substance violation. Rec. at 85-86; see 8 U.S.C. § 1227(a)(2)(A)(iii) (a)(2)(B)(i) (Supp. 1998).
On February 16, 1998, removal proceedings commenced before an immigration judge ("IJ"). Rec. at 48-51. The IJ adjourned the proceedings because Hernandez-Osoria's attorney did not appear. Rec. at 50-51. On February 20, 1998, Hernandezosoria was released from I.N.S. custody at the Oakdale Federal Detention Center in Oakdale, Louisiana on a $15,000 bond. Rec. at 109. On March 29, 1998, the IJ granted Hernandez-Osoria's March 8, 1998 motion for a change of venue, Rec. at 105-106, and transferred the proceedings to New York City. Rec. at 95-96. On July 15, 1998, the IJ again adjourned the proceedings because Hernandez-Osoria's attorney did not appear in court. Rec. at 55-56. On September 1, 1998, Hernandez-Osoria appeared with a new attorney. Rec. at 59. Through counsel, Hernandez-Osoria conceded service of the Notice to Appear and the I.N.S. served an additional copy of the Notice of Additional Charges. Rec. at 58-60. The IJ adjourned the proceedings to give Hernandez-Osoria's new attorney an opportunity to prepare. Rec. at 60.
On November 18, 1998, Hernandez-Osoria, through counsel, conceded that he is not a citizen or national of the United States, that he is a native and citizen of the Dominican Republic, and that he was admitted to the United States as a non-immigrant visitor but remained in the United States for longer than authorized. Rec. at 63-64. Hernandez-Osoria also conceded that he was removable from the United States because he overstayed his visa. Ed. However, Hernandez-Osoria denied the drug conviction allegations contained in the Additional Charges of Inadmissibility/Deportability Rec. at 64.
The IJ admitted into evidence the record of Hernandez-Osoria's March 21, 1997 conviction for criminal sale of a controlled substance (cocaine) in the third degree. Rec. at 65, 76-82, and the sentence and commitment form for Hernandez-Osoria's November 7, 1997 conviction for attempted criminal possession of a controlled substance (cocaine) in the fourth degree. Rec. at 66, 83-84. Based on this evidence, the IJ found that Hernandez-Osoria had been convicted of the crimes listed in the Notice of Additional Charges and found him removable as an alien who has been convicted of an aggravated felony and a controlled substance offense. Rec. at 66.
Hernandez-Osoria informed the IJ that he wanted to apply for a waiver of inadmissibility pursuant to section 212(h) and for adjustment of his status to that of a lawful permanent resident. Id. The IJ explained that Hernandez-Osoria was not eligible for a waiver of inadmissibility pursuant to section 212(h) because of his controlled substance convictions, but adjourned the Proceedings for Hernandez-Osoria to submit briefing on the issue and to file his section 212(h) application. Rec. at 66-68. On February 9, 1999, the proceedings resumed. Rec. at 69-75. However, Hernandez-Osoria did not submit a section 212(h) application or any briefing regarding his eligibility. Rec. at 71-72.
C. The IJ's and BIA's Decisions
On February 9, 1999, the IJ issued an oral decision ordering Hernandez-Osoria removed to the Dominican Republic. Rec. at 41-46. The IJ found that based on Hernandez-Osoria's admissions and the evidence in the record, he is removable based on the charges contained in the Notice to Appear and the Notice of Additional Charges. Rec. at 41-44. The IJ noted that Hernandez-Osoria could not adjust his status to a lawful permanent resident because his convictions render him inadmissible. Rec. at 44. The IJ also found that Hernandez-Osoria is not eligible for a waiver of inadmissibility pursuant to section 212(h) because he has been convicted of a controlled substance offense other than a single offense of simple possession of 30 grams or less of marijuana. Rec. at 44-45.
Hernandez-Osoria filed a timely appeal of the IJ's decision with the BIA arguing that the conviction records admitted into evidence did not relate to him. Rec. at 26. Hernandez-Osoria also argued that because his convictions occurred prior to April 1, 1997, he is eligible to apply for waiver of deportation pursuant to former INA § 212(c), 8 U.S.C. § 1182(c). Rec. at 26-27. On January 16, 2001, the BIA issued a decision dismissing Hernandez-Osoria's appeal and affirming the IJ's decision without opinion. Rec. at 13-14.
Prior to the enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), certain aliens otherwise determined to be deportable had been entitled to apply for discretionary waivers of deportation under INA section 212(c). Enacted on April 24, 1996, AEDPA significantly restricted the classes of criminal aliens who could apply for section 212(c) waiver. IIRIRA, which came into effect on April 1, 1997, repealed section 212(c) in its entirety and created "cancellation of removal" in its place. See 8 U.S.C. § 1229b(a) (Supp. IV 1998).
In I.N.S. it. St. Cyr, 121 S.Ct. 2271, 2293 (2001), the Supreme Court held that aliens who pleaded guilty to criminal convictions prior to the enactment of IIRIPA and who would have been eligible for section 212(c) relief at the time of the plea remain eligible for section 212(c) relief. Hernandez-Osoria's conviction for attempted criminal possession of a controlled substance (cocaine) in the fourth degree, however, occurred on November 11, 1997, after IIRIRA's enactment. Thus, Hernandez-Osoria is not eligible for section 212(c) relief.
D. The Motion to Reopen and Reconsider
On February 15, 2001, Hernandez-Osoria filed a pro se "Motion to Reopen and Reconsider Under Matters: Yeung/Michel." Rec. at 8-9. Hernandez-Osoria argued that the IJ erred by finding that he was not eligible for waiver of inadmissibility under section 212(h). Rec. at 8. Hernandez-Osoria also argued, for the first time during the proceedings, that he should be granted withholding of removal under CAT because of the "extra-judicial killings and abuses by local police in the Dominican Republic." Id.
On April 30, 2001, the BIA denied the motion to reopen. Rec. at 1-3. The BIA found that Hernandez-Osoria is not eligible for a section 212(h) waiver because he was convicted of a controlled substance offense, other than a conviction for simple possession of 30 grams or less of marijuana, and that its decisions in Matter of Yeung and Matter of Michel do not stand a contrary proposition. Rec. at 2.
The BIA also denied Hernandez-Osoria's request for a remand to apply for withholding of removal under CAT. Rec. at 2-3. First, the BIA noted that Hernandez-Osoria presented no explanation as to why he did not seek CAT relief in the proceedings below. Rec. at 2. Second, the BIA explained that the motion was not accompanied by an application for relief and that the generalized allegations contained in the motion to reopen did not demonstrate prima facie eligibility for relief. Rec. at 3. Finally, the BIA found that Hernandez-Osoria failed to show that conditions have arisen in his country of nationality subsequent to his proceedings such that a motion to remand for consideration of a CAT claim may be considered. Id.
II. DISCUSSION
A. Jurisdiction
"[F]ederal courts have jurisdiction under § 2241 to grant writs of habeas corpus to aliens when those aliens are `in custody in violation of the Constitution or laws or treaties of the United States.'" Henderson it. I.N.S., 157 F.3d 106, 122 (2d Cir. 1998) (quoting 28 U.S.C. § 2241). In St. Cyr, the Supreme Court held that district courts retain jurisdiction under 28 U.S.C. § 2241 to review pure questions of law regarding an alien's eligibility for discretionary relief under section 212(c). See 121 S.Ct. at 2287 n. 38. Accordingly, this Court has jurisdiction to address Hernandez-Osoria's legal claim that he is eligible for a waiver of inadmissibility pursuant to section 212(h).
B. Section 212(h) Waiver of Inadmissibility
2. Hernandez-Osoria's Criminal Convictions Render Him Removable
As an initial matter, the IJ and BIA properly found Hernandez-Osoria to be removable as an alien who has been convicted of both controlled substance violations and an aggravated felony. See Rec. at 44-45. Hernandez-Osoria's March 21, 1997 conviction for attempted criminal sale of cocaine in the third degree and his November 11, 1997 conviction for attempted criminal possession of cocaine in the fourth degree are convictions for violating laws relating to controlled substances. Accordingly, Hernandez-Osoria is subject to removal. See 8 U.S.C. § 1227(a)(2)(B)(i) (Supp. 1998) ("Any alien who at any time after admission has been convicted of a violation of . . . any law . . . relating to a controlled substance . . . other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.").
3. Hernandez-Osoria's Controlled Substance Convictions Cannot Be Waived
Hernandez-Osoria argues that the BIA erred in finding that he is not eligible for a waiver of inadmissibility pursuant to section 212(h). See Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 at 1 ("Petition"). This argument is meritless, however, because his criminal convictions render him ineligible to apply for relief under section 212(h). Section 212(h) provides for a waiver of inadmissibility for aliens convicted of certain non-drug crimes so that aliens who would otherwise be inadmissible can apply for adjustment of status. See 8 U.S.C. § 1182(h). The relevant portion of section 212(h) provides as follows:
The INA permits an alien to adjust his or her status and become a lawful permanent resident if he or she meets certain requirements. Section 245 of the INA provides:
The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.8 U.S.C. § 1255(a) (Supp. 1998).
Aliens who have been convicted of certain crimes are inadmissible and therefore ineligible to adjust to lawful permanent resident status. Specifically, Hernandez-Osoria is inadmissible because he has been convicted of violating a law relating to a controlled substance. See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (Supp. 1998),
The Attorney General may, in his discretion, waive the application of subparagraph [ 8 U.S.C. § 1182(a)(2)] . . . and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana.8 U.S.C. § 1182(h) (Supp. 1998) (emphasis added).
Hernandez-Osoria is not eligible for a section 212(h) waiver of inadmissibility because his convictions for attempted criminal sale of cocaine in the third degree and attempted criminal possession of cocaine in the fourth degree cannot be waived. Under section 212(h), waiver of inadmissibility is only available for aliens who have been convicted of controlled substance offense if the conviction is for a single offense of simple possession of 30 grams or less of marijuana. Hernandez-Osoria has two offenses, not a single offense, and neither conviction is for simple possession of marijuana. Consequently, Hernandez-Osoria is not eligible to obtain a waiver of inadmissibility under section 212(h).
Hernandez-Osoria alleges that the BIA failed to follow Matter of Michel and Matter of Yeung. The BIA, however, correctly held that these decisions do not support Hernandez-Osoria's argument that he is eligible for a section 212(h) waiver. See Rec. at 2. First, in Matter of Michel, 21 I. N. Dec. 1101, Int. Dec. 3335, 1998 WL 40407 (BIA Jan. 30, 1998), the BIA held that an alien who had been convicted of a crime involving moral turpitude was eligible for a section 212(h) waiver of inadmissibility. Michel is distinguishable from the present case, because, unlike the petitioner in Michel, Hernandez-Osoria was convicted of controlled substance offenses which cannot be waived under section 212(h). In Matter of Yeung, 21 I. N. Dec. 610, Int. Dec. 3297, 1997 WL 631103 (BIA Oct. 7, 1997), the BIA held that an alien who previously had been admitted to the United States as a lawful permanent resident and was later convicted of an aggravated felony was ineligible for a section 212(h) waiver. Although Yeung involved a lawful permanent resident, its holding supports, rather than contradicts, the BIA's finding of ineligibility in petitioner's case.
The crimes in Michel consisted of burglary and grand theft, not drug violations.
In sum, the BIA properly found that Hernandez-Osoria is removable from the United States because of his criminal convictions. Furthermore, the BIA also correctly concluded that Hernandez-Osoria is not eligible for a waiver of inadmissibility pursuant to section 212(h).
B. Hernandez-Osoria's Motion to Reopen to Apply for Withholding of Removal Under CAT
1. This Court Does Not Have Jurisdiction to Review the BIA's Discretionary Denial of Petitioner's Motion to Reopen
Article 3 of CAT requires withholding of removal "where there are substantial grounds for believing that [an alien] would be in danger and subjected to torture" if returned to his or her native country. FARRA, § 2242, 112 Stat. 2681, 2681-82; see also 8 C.F.R. § 208.18 (Implementation of Convention Against Torture). Although district courts retain jurisdiction under 28 U.S.C. § 2241 to review questions of law and constitutional challenges against final orders of removal, see St Cyr, 121 S.Ct. at 2287 n. 38, the scope of habeas review does not encompass discretionary determinations such as a denial of a motion to reconsider. Section 2241 allows a court to review only whether an individual is in custody in violation of "the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). In St. Cyr, the Court contrasted pure questions of law with exercises of discretion, indicating that the latter are not subject to habeas review.
Moreover, this case raises only a pure question of law as to respondent's statutory eligibility for discretionary relief, not, as the dissent suggests, an objection to the manner in which discretion is exercised.
St. Cyr, 121 S.Ct. at 2287, n. 38.
Unlike Hernandez-Osoria's argument that he is eligible for a waiver of inadmissibility pursuant to section 212(h), which presents a question of law, petitioner's second argument is a challenge to the BIA's discretionary denial of his motion to reopen to apply for withholding of removal under CAT. See Petition at 1-2. This Court does not have jurisdiction, however, to review the BIA's discretionary denial of a motion to reopen. See McDaniel v. U.S. I.N.S., 142 F. Supp.2d 219, 223 (D. Conn. 2001) (district court does not have jurisdiction to review discretionary denial of CAT relief); Akhtar v. Reno, 123 F. Supp.2d 191, 197 (S.D.N.Y. 2000) (same).
2. The BIA Did Not Abuse Its Discretion by Denying Hernandez-Osoria's Request to Reopen the Proceedings to Submit a Claim for Withholding of Removal Under CAT
Assuming, arguendo, that jurisdiction exists here, the standard of review to be applied to the BIA's denial of motions to reopen is whether there was an abuse of discretion. See Mansour v. I.N.S., 230 F.3d 902, 906-07 (7th Cir. 2000) ("We review the BIA's decision not to reopen the case under the Convention Against Torture for abuse of discretion.") (citing I.N.S. v. Doherty, 502 U.S. 314, 323 (1992)). The BIA's decision to deny Hernandez-Osoria's motion to reopen must be upheld "unless it was made without a rational explanation, inexplicably departed from established policies or rested on an impermissible basis such as invidious discrimination against a particular race or group." Achacoso-Sanchez v. I.N.S., 779 F.2d 1260, 1265 (7th Cir. 1985) (quotation marks omitted).
The BIA can deny a motion to reopen on any of the following three independent grounds: (1) "failure to establish a prima facie case for the relief sought;" (2) "failure to introduce previously unavailable, material evidence;" and (3) "a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of the relief which he sought." Doherty, 502 U.S. at 323.
Hernandez-Osoria failed to demonstrate prima facie eligibility for relief under CAT. To establish eligibility for withholding of removal under CAT, "[t]he burden of proof is on the applicant . . . to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 208.16(c)(2) (2001); see also Najjar v. Ashcroft, 257 F.3d 1262, 1302-03 (11th Cir. 2001).
"Torture" is defined, in turn, as:
[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.8 C.F.R. § 208.18(a)(1)(2001).
Hernandez-Osoria alleges that local police in the Dominican Republic have killed at least 228 people since February 25, 2000. Hernandez-Osoria does not establish any link between these alleged killings and any future danger to him. Nor does the motion to reopen contain any evidence tending to show that it is more likely than not that he will be tortured if returned to the Dominican Republic. Accordingly, the BIA did not abuse its discretion in denying petitioner's motion to reopen.
III. CONCLUSION
For the reasons stated above, the petition is dismissed. I decline to issue a certificate of appealability as one is not required to appeal a denial of a section 2241 petition. See Ojo v. I.N.S., 106 F.3d 680, 681 (5th Cir. 1997) (plain language of section 2253 indicates that a certificate of appealability is not required from a denial of a section 2241 petition). The Clerk of the Court is directed to close this case.