Opinion
01 Civ. 7383 (DAB)(KNF)
October 16, 2002
REPORT AND RECOMMENDATION
I. INTRODUCTION
Before the Court is Patrick Yawo King's ("King") pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2241. Petitioner challenges a final order of removal from the United States issued by the Immigration and Nationalization Service ("INS").
Petitioner contends that he is entitled to relief because: (1) the INS' refusal to allow him to submit his application for relief from removal, which was made pursuant to the United Nations Convention Against Torture ("Convention Against Torture"), constituted an abuse of discretion and a violation of due process; (2) he is eligible for a discretionary waiver of deportation pursuant to the Immigration and Nationality Act ("INA") § 212(c) ("§ 212(c)"), 8 U.S.C. § 1182 (c) (repealed by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIIRA") § 304 [b]); and (3) his continued mandatory, indefinite detention by the INS is a violation of his constitutional rights to due process and to be free from cruel and unusual punishment. Respondents oppose petitioner's application for a writ of habeas corpus.
The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was ratified by the United States Senate in 1994 and implemented by Congress with the passage of the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), Pub.L. No. 105-277, § 2242, 112 Sat. 2681, 2681-82 (1998).
For the reasons set forth below, I recommend that the petition be denied.
II. BACKGROUND
King is a native and citizen of Guyana. He entered the United States on August 15, 1985, as a visitor and became a lawful permanent resident on October 30, 1991. On August 30, 1994, following a jury trial in New York State Supreme Court, Kings County, King was found guilty of robbery in the first degree, see N.Y. Penal Law § 160.15, an aggravated felony pursuant to 8 U.S.C. § 1101 (a)(43). King was sentenced to five to fifteen years' imprisonment.
The statutory definition of "aggravated felony" incorporates other statutory definitions. See United States v. Pomes-Garcia, 171 F.3d 142, 145 (2d Cir. 1999). 8 U.S.C. § 1101 (a)(43) defines "aggravated felony" as, among other things, a "crime of violence," as that phrase is used in 18 U.S.C. § 16. That provision of Title 18 informs that a "crime of violence" is an "offense that has as an element the use, attempted use, or threatened use of physical force" against the person of another. 18 U.S.C. § 16 (a).
On June 25, 1999, King was served a Notice to Appear in Removal Proceedings. The Removal Proceeding was initiated pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227 (a)(2)(A)(iii) (alien convicted of an aggravated felony).
On March 9, 2000, an Immigration Judge ("IJ") ordered King removed to Guyana. In his order, the IJ noted that, in this case, the deadline for filing an application for relief from removal was March 3, 2000, and that King had failed to file such an application. The II found, therefore, that King had abandoned any claim for relief from removal.
Thereafter, King filed an Application for Asylum and Withholding of Removal pursuant to the Convention Against Torture. The application was dated March 10, 2000, and included, among other documents, petitioner's statement in support of his request for political asylum. In the statement, King averred that he was seeking asylum in the United States because of "changed circumstances and conditions in Guyana." According to King, during the late 1970s and early 1980s, his father was the general manager of a large, state-owned communications corporation in Guyana which had "strong ties" to the People's National Congress ("PNC"), then the country's ruling political party. In his capacity as an official of a state-owned corporation, King's father was, according to King, constantly coerced by the leaders of the PNC to dismiss employees who were allied with the rival political party, the People's Progressive Party ("PPP"). In 1984, King stated, his father was dismissed from his business position because of his refusal to cooperate with the practices of the PNC; thereafter, King's father emigrated to the United States. According to King, the PPP is now the dominant political party in Guyana; consequently, because of his father's former involvement with the PNC and current political problems in Guyana, King fears that, if he returns as a deportee, he will be "readily identified as [his] father's son and will [be] the target [of] harassment, torture or even death."
On March 14, 2000, King's application for asylum was denied on the grounds that it was submitted untimely and that an order of removal had previously been issued. On March 15, 2000, King moved to reopen the removal proceedings. The motion to reopen was in the form of an affidavit from King's mother in which she averred that the application for asylum and withholding of removal had been filed untimely because of her difficulty in obtaining documents from Guyana. The IJ denied the motion to reopen; the IJ noted that petitioner was represented by counsel who knew the deadline for filing an application for relief from removal and, moreover, had been told by the court that, if necessary, he could request an extension of the time to file.
Petitioner appealed the denial of his motion to reopen. On August 18, 2000, the BIA, in a per curiam opinion, dismissed petitioner's appeal because: (a) the motion to reopen had not addressed King's failure to request an extension of the time allowed for filing or, alternatively, to file the application timely and to submit supporting documents at a later date, as he was permitted to do; (b) the motion to reopen had failed to state any new facts supported by affidavits or other evidentiary material; and (c) applications for relief from removal were properly denied when they were untimely. The BIA concluded that the motion to reopen had been properly denied.
On November 24, 2000, King moved again to reopen his removal proceedings on the ground that he was eligible for a discretionary waiver of deportation pursuant to § 212(c) because he committed the offense of robbery in the first degree before AEDPA and IIRIRA eliminated § 212(c) relief. Petitioner's motion to reopen was denied by the BIA on February 8, 2001.
On March 15, 2001, petitioner filed a motion to reconsider the denial of his motion to reopen. Petitioner argued that the distinction identified by the Supreme Court in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001), between a conviction obtained by a guilty plea and a conviction obtained by a jury trial, was arbitrary and unconstitutional. The BIA denied the motion to reconsider, stating that it could not review a decision of a federal court, and ordered King removed to Guyana. The BIA's decision rendered King's removal order final. See Lleo-Fernandez v. INS, 989 F. Supp. 518, 520 n. 2 (S.D.N.Y. 1998).
On August 1, 2001, King completed his sentence for first degree robbery and was released from the Sing Sing Correctional Facility into INS custody. King was initially detained at the Varick Street Service Processing Center in New York City; however, on September 12, 2001, he was transferred to an INS detention facility in York, Pennsylvania.
The instant habeas corpus petition was filed on August 6, 2001. In order to preserve the court's jurisdiction to reach the merits of the case, the assigned district judge stayed petitioner's removal. See 28 U.S.C. § 1651.
III. DISCUSSION
Jurisdiction
Federal courts have jurisdiction under 28 U.S.C. § 2241 to hear and determine petitions for writs of habeas corpus seeking review of final removal orders, but only with respect to legal or constitutional issues.See Calcano-Martinez v. INS, 533 U.S. 348, 351-52, 121 S.Ct. 2268, 2269-70 (2001); St. Cyr, 533 U.S. at 314, 121 S.Ct. at 2287. Accordingly, a habeas corpus petition brought pursuant to § 2241 may be used only "to challenge incarceration or orders of deportation as being 'in violation of the Constitution or laws or treaties of the United States.'" Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001) (quoting 28 U.S.C. § 2241[c][3]).
In the instant case, King's claim concerning the IJ's refusal to allow him to submit an application for relief from removal alleges, inter alia, a violation of his right to due process; therefore, the claim raises a constitutional issue. Similarly, King's contentions that he is eligible for § 212(c) relief, and that his continued detention by the INS violates his rights to due process and to be free from cruel and unusual punishment, challenge his order of deportation on legal and constitutional grounds, respectively. Accordingly, this court has jurisdiction to entertain the instant petition and to determine whether the petitioner is entitled to habeas corpus relief.
Eligibility for Relief under the Convention Against Torture
Article III of the Convention Against Torture provides:
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
Convention Against Torture, Art. III, 23 I.L.M 1027, 1028 (1984).
In 1999, regulations to implement the United States' treaty obligations under the Convention Against Torture were promulgated by the INS. See 64 F.R. 8478 (1999), codified at 8 C.F.R. § 208.16 and 208.18 (2000). The regulations provide, in pertinent part: "The burden of proof is on the applicant for withholding of removal under this paragraph 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); see also Soto v. Ashcroft, No. 00 Civ. 5986, 2001 WL 1029130, at *6 (S.D.N.Y. Sept. 7, 2001).
Petitioner contends that the IJ's decision "not allowing Petitioner to submit an application for political asylum, withholding of removal and relief under the U.N. Convention Against Torture constitutes an abuse of discretion and a violation of due process." The respondents argue that the IJ's denial of King's motion to reopen his removal proceedings in order to allow him to apply for asylum and withholding from removal was purely discretionary and, thus, beyond the scope of habeas corpus review. The respondents contend further that, even if the court has jurisdiction to review petitioner's claim, the IJ's denial of petitioner's motion to reopen was not an abuse of discretion and, in any event, King failed to establish eligibility for withholding of removal under the Convention Against Torture.
As noted above, federal courts have jurisdiction under 28 U.S.C. § 2241 to review questions of law and constitutional challenges to final orders of removal. However, "federal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the IT and the BIA." Sol., 274 F.3d at 651; see also Dasanto v. INS, No. 01 Civ. 8015, 2002 WL 31119433, at *4 (S.D.N.Y. Sept. 24, 2002); Hernandez-Osoria v. Ashcroft, No. 01 Civ. 5545, 2002 WL 193574, at *5 (S.D.N.Y. Feb. 7, 2002). The decision whether to grant a motion to reopen a removal proceeding, or a motion to reconsider the dismissal of a motion to reopen, is a matter of discretion. See 8 C.F.R. § 3.23 (b)(1)(iv) ("The decision to grant or deny a motion to reopen or a motion to reconsider is within the discretion of the [II]."); see also INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724 (1992) ("The granting of a motion to reopen is . . . discretionary . . . and the Attorney General has 'broad discretion' to grant or deny such motions.").
The respondents are correct that, in general, the denial of a motion to reopen a removal proceeding to consider an application for relief from removal is discretionary. In the instant case, however, insofar as petitioner has alleged, inter alia, a violation of his right to due process in asserting his claim for relief from removal, his petition does not seek review of a discretionary decision but, instead, raises a constitutional question. Accordingly, the Court may consider whether petitioner has asserted a valid due process claim as part of his habeas corpus petition, over which the court has subject matter jurisdiction.See Liu v. INS, 293 F.3d 36, 41 (2d Cir. 2002) (finding that where petitioner contended, inter alia, that the government had violated her rights under the Due Process Clause, her petition must not be construed as seeking review of a discretionary decision, but rather as raising a pure question of law cognizable on collateral review); Soto, 2001 WL 1029130, at *7 (finding that the court had jurisdiction under 28 U.S.C. § 2241 to review petitioner's Convention Against Torture claim insofar as petitioner alleged that, as a matter of law, his return to the country of removal would violate the treaty).
The only procedural irregularity identified by petitioner in support of his due process claim is that the IJ's behavior in refusing to allow him to file an asylum application was "totally arbitrary." Petitioner acknowledges that his application was filed untimely, but says that this was due to the difficulty in obtaining documents from Guyana. Petitioner states further that he was cooperative with the Immigration Court and never used any dilatory tactics, that he is a legal permanent resident of the United States, and that his parents are United States citizens.
The rules governing motions to reopen or reconsider, brought before the Immigration Court, provide, in pertinent part:
A motion to reopen will not be granted unless the [H] is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. A motion to reopen for the purpose of providing the alien an opportunity to apply for any form of discretionary relief will not be granted if it appears that the alien's right to apply for such relief was fully explained to him or her by the [ILJ] and an opportunity to apply therefore was afforded at the hearing . . . ."
8 C.F.R. § 3.23 (b)(3).
In the instant case, with respect to petitioner's motion to reopen, the IJ found that "[n]o good [cause] has been shown for the failure to timely file for relief." In reaching this conclusion, the IJ noted that petitioner's counsel "knew the deadline to file the [application for relief]" and that "[t]he record shows the Court even told Counsel that he could write for an extension of the time to file if he was having trouble getting the [application for relief] completed." The IJ also indicated that the petitioner had been told that "the documents cited by the affidavit were not necessary to file the [application for relief]." Thus, it appears that the petitioner's right to apply for discretionary relief was fully explained to him by the IJ and that he was afforded an opportunity to apply for such relief at the time of his removal hearing.
Additionally, petitioner has not suggested that he sought to introduce new evidence that was not available and could not have been discovered or presented at his removal proceeding. Moreover, petitioner was informed that documentary evidence, the unavailability of which allegedly caused petitioner's application to be filed untimely, could have been submitted after the filing deadline. Accordingly, petitioner's claim that the IJ behaved in an arbitrary manner when he denied petitioner's motion to reopen is without merit.
Petitioner also has alleged an abuse of discretion on the part of the II. In Doherty, the Supreme Court identified three independent grounds on which a motion to reopen an application for asylum and withholding of removal can be denied: "failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought." 533 U.S. at 323, 112 S.Ct. at 725. The Court stated further: "When denial of a motion to reopen is based on the last two of these three grounds, abuse of discretion is the proper standard of review." Id.
In the instant case, there is no evidence that the IJ's denial of the motion to reopen was based upon King's failure to adduce new material evidence or a determination that King would be ineligible for discretionary relief even if he had met the necessary requirements for obtaining relief. Therefore, since the IJ did not rely on these bases in denying the petitioner's motion to reopen, abuse of discretion is not the appropriate standard of review in this case. In any event, as noted above, King's due process claim alleging arbitrary behavior is meritless. Since the IJ's behavior in denying petitioner's motion to reopen cannot be said to have been arbitrary, a finding of abuse of discretion on that ground is not warranted here.
In view of the fact that petitioner's motion to reopen was properly denied, the merits of petitioner's claim under the Convention Against Torture were not addressed by the Immigration Court. Accordingly, this Court does not reach the issue of whether, pursuant to 8 C.F.R. § 208.16, petitioner was able to meet his burden of proof in establishing that "it is more likely than not" that he would be tortured if he were removed to Guyana— that is, whether the INS' determination of this matter was supported by substantial evidence. See Soto, 2001 WL 1029130, at *7-9.
Eligibility for Section 212(c) Relief
Prior to the enactment of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, certain aliens were entitled to apply for a waiver of deportation pursuant to § 212(c). Section 212(c), codified at 8 U.S.C. § 1182 (c), stated:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General.8 U.S.C. § 1182 (c)(repealed)(1996) (quoted in St. Cyr, 533 U.S. at 295, 121 S.Ct. at 2276).
In 1990, Congress amended § 212(c) to exclude from eligibility for a waiver any alien who had been convicted of one or more aggravated felonies and had served a term of imprisonment of at least five years.See Immigration Act of 1990, Pub.L. No. 101-649, § 511, 104 Stat. 5052 (amending 8 U.S.C. § 1182[c]); see also St. Cyr, 533 U.S. at 297, 121 S.Ct. at 2277.
On April 24, 1996, Congress limited further the availability of § 212(c) relief through the enactment of § 440(d) of AEDPA, which excluded from § 212(c) relief all aliens convicted of certain enumerated offenses regardless of the amount of time served in prison.See AEDPA § 440(d), 8 U.S.C. § 1227 (precluding from discretionary relief aliens convicted of committing, inter alia an aggravated felony, a drug-related crime, or two or more offenses involving moral turpitude).
On September 30, 1996, Congress enacted the IIRIRA, which repealed § 2 12(c) altogether, and eliminated the proceedings previously known as "deportation" and "exclusion." Section 212(c) was replaced with a different form of discretionary relief from deportation known as cancellation of removal. See IIRIRA § 304(b), 8 U.S.C. § 1229a. Cancellation of removal was made available only to aliens who, inter alia had not been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a).
In June 2001, the United States Supreme Court addressed the question, whether provisions of AEDPA and IIRTRA repealing discretionary relief from deportation applied retroactively to an alien whose conviction was obtained through a plea agreement. See St. Cyr, 533 U.S. at 320, 121 S.Ct. at 2290. The Court held that "§ 212(c) relief remains available for aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." Id. at 326, 2293. In reaching its conclusion, the Court reasoned that:
[This] presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.Id. at 316, 2288 (citation omitted) (internal quotation marks omitted).
King claims that he is eligible for relief pursuant to § 212(c) because his 1994 conviction for first-degree robbery, which served as the predicate for his order of removal, predates the 1996 enactment of AEDPA and IIRIIRA. Consequently, according to petitioner, the BIA erred when it concluded that he was ineligible for a discretionary waiver of deportation pursuant to § 212(c). Accordingly, to bar him from applying for a waiver under that provision would result in an impermissible retroactive application of AEDPA and IIRIRA.
Petitioner's claim is without merit. Although petitioner's 1994 conviction for first-degree robbery predates the enactment of AEDPA and IIRIIRA, the conviction was obtained, not through a guilty plea, but through a jury verdict. Therefore, the Supreme Court's ruling in St. Cyr, making § 212(c) relief available to aliens who pled guilty prior to the enactments of AEDPA and IIRIRA, does not apply in this case.
Petitioner contends that the distinction made by the United States Supreme Court in St. Cyr between a conviction obtained by a guilty plea and a conviction obtained by a jury trial is unconstitutional. This question has been addressed and decided by the Second Circuit Court of Appeals, which found that "discretionary relief as amended by AEDPA § 440(d) still applies to all aliens with convictions pre-dating its enactment and to all guilty pleas entered after its effective date." St. Cyr v. INS, 229 F.3d 406, 421 (2d Cir. 2000); see also Disanto v. INS, No. 00 Civ. 4239, 2002 WL 10448, at *4 (S.D.N.Y. Jan. 3, 2002). Thus, the Second Circuit "found no unfairness in retrospectively limiting discretionary relief for aliens who had been convicted at trial."Disanto, 2002 WL 10448, at *4.
Moreover, when released from New York State custody in 2001, King had served a term of imprisonment of more than five years for his 1994 aggravated felony conviction. Therefore, under the 1990 amendment to § 212(c), which precluded from discretionary relief anyone convicted of an aggravated felony who had served a term of imprisonment of at least five years, petitioner became ineligible for a waiver from deportation in 1999. Therefore, King is not eligible for § 212(c) relief, and the BIA did not err when it concluded that he was ineligible for such discretionary relief.
Eligibility for Release from INS Custody
Petitioner claims that he is entitled to habeas corpus relief because his continued mandatory detention by the INS violates his constitutional rights to due process and to be free from cruel and unusual punishment. Under the post-removal-period detention statute, the Attorney General has 90 days to remove an alien who has been ordered removed. See 8 U.S.C. § 1231 (a)(1)(A). Additionally, under the statute, certain categories of aliens who have been ordered removed, including criminal aliens removable pursuant to 8 U.S.C. § 1227 (a)(2) (alien convicted of an aggravated felony), as well as any alien "who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal," may be detained beyond the removal period and, if released, shall be subject to certain terms of supervision. 8 U.S.C. § 1231 (a)(6). The period of time during which it is presumptively reasonable for the INS to detain an individual whose removal order has become final is six months. See Zadvydas v. Davis, 533 U.S. 678, 701, 121 S.Ct. 2491, 2505 (2001) (determining that Congress "doubted the constitutionality of detention for more than six months" after the conclusion of removal proceedings, and recognizing that time period as reasonable).
In the instant case, King was released from New York State confinement into INS custody on August 1, 2001. King filed his habeas corpus petition on August 6, 2001. Thus, King's 90-day removal period did not expire until November 1, 2001, see 8 U.S.C. § 1231 (a)(1)(B)(iii) ("If the alien is detained or confined . . . [the removal period begins on] the date the alien is released from detention or confinement."), and he had not been detained for more than six months at the time he petitioned for habeas corpus relief.
Furthermore, as an "aggravated felon," King belongs to a category of alien who may be detained beyond the removal period. Moreover, King has the right to apply for release from detention to, among others, the INS District Director, who is authorized to release King on a finding that King is neither likely to flee nor to present a danger to the community.See 8 C.F.R. § 241.4 (d)(1). However, there is no indication in the record that King has pursued any of the administrative remedies available to him in an attempt to show that he meets those criteria. Accordingly, petitioner's claim that his continued mandatory detention by the INS is violative of his constitutional rights must be dismissed as premature for failure to exhaust administrative remedies. See, e.g., Aboulkhair v. INS, No. 97 Civ. 1872, 1998 WL 2557, at *2 (S.D.N.Y. Jan. 5, 1998).
IV. RECOMMENDATION
For the reasons set forth above, I recommend that petitioner's application for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, 500 Pearl Street, Room 2510, New York, N.Y. 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, NY, 10007. Any requests for an extension of time for filing objections must be directed to Judge Batts. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985);IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).