Opinion
No. 02 Cr. 104 (JFK).
July 20, 2005
GEORGE OTIBU, pro se FCI Loretto, Loretto, PA, for the Petitioner.
DAVID N. KELLEY, United States Attorney, Southern District of New York, New York, New York, Of Counsel: AUSA Marcus Asner, for the Respondent.
OPINION and ORDER
PRELIMINARY STATEMENT
Before the Court is Petitioner George Otibu's ("Otibu") pro se petition for early deportation pursuant to Section 241 (a) of the Immigration and Nationality Act, 8 U.S.C. § 1231 (a) (4) (B). For the reasons stated herein, the petition is dismissed.
BACKGROUND
On January 4, 2002, Otibu and a co-defendant were arrested after delivering a kilogram of heroin to an individual cooperating with the Government. On June 27, 2002, the Government filed Superseding information S2 02 Cr. 104 charging Otibu with one count of conspiracy to distribute one kilogram and more of heroin, in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute and distribution of one kilogram and more of heroin, in violation of 21 U.S.C. §§ 812, 841 (a) (1) and 841 (b) (1) (A). Pursuant to a cooperation agreement with the Government, Otibu pleaded guilty to both counts before Judge Allen G. Schwartz on June 27, 2002.
On January 6, 2004, Otibu appeared before me for sentencing. As provided by the Sentencing Guidelines, I calculated Otibu's total offense level at 35 and his Criminal History Category at I. (Sentencing Tr. at 7). The Guidelines indicated a sentence of 168 to 210 months. (Id. at 8). Pursuant to a § 5K1.1 motion by the Government and 18 USC § 3553 (e), I sentenced Otibu below the Guidelines range and the statutory minimum to two concurrent sentences of 72 months' imprisonment followed by 5 years' supervised release. (Id. at 16).
This case was transferred to me after the death of Judge Schwartz in late 2003.
THE INSTANT MOTION
On April 1, 2004, Otibu filed his pro se letter seeking early deportation pursuant to Section 241 (a) of the Immigration and Nationality Act, 8 U.S.C. § 1231 (a) (4) (B). Otibu's letter asserts that he is a national of Ghana convicted of a nonviolent offense, and thus entitled to early deportation. The Government opposes the petition on the grounds that early deportation is available only at the discretion of the Attorney General, the exercise of which lies outside the Court's jurisdiction.
DISCUSSION
8 U.S.C. § 1231 (a) (4) (A) prohibits the Attorney General from deporting an alien sentenced to prison until he is released. Subsection B creates an exception authorizing early deportation if the Attorney General determines that "(I) the alien is confined pursuant to a final conviction for a nonviolent offense . . . and (II) the removal of the alien is appropriate and in the best interest of the United States." This determination "is a matter solely within the discretion of the Attorney General,"Thye v. U.S., 109 F.3d 127, 129 (2d Cir. 1997), and is not subject to compulsion through a private cause of action. See 8 USC § 1231 (a) (4) (D). The Attorney General has not determined that Otibu's early deportation is appropriate. Because the Court lacks jurisdiction to review this decision, see 8 U.S.C.A. § 1252 (a) (2) (B) (ii), the petition must be dismissed.
CONCLUSION
Otibu's petition for early deportation pursuant to Section 241 (a) of the Immigration and Nationality Act, 8 U.S.C. § 1231 (a) (4) (B), is dismissed.
SO ORDERED.