Opinion
02 CIV. 6778 (DLC)
January 24, 2003
Rudy Rivas, Petitioner Pro Se, Sullivan Correctional Facility Fallsburg, N.Y.
Megan L. Brackney, Assistant United States Attorney, United States Attorney for the Southern District of New York, New York, N.Y.
OPINION AND ORDER
On July 11, 2002, the Pro Se Office of this district received a petition for a writ of habeas corpus from inmate Rudi Iluminado Rivas-Taveras ("Rivas") challenging the final order of removal issued by the Immigration and Naturalization Service ("INS"). Rivas is currently serving a lengthy term of incarceration following convictions in state court for drug offenses. Pursuant to the Order of October 22, 2002, removal has been stayed pending further order of this Court. For the following reasons, the petition is denied.
Background
Rivas is a citizen of the Dominican Republic. He has three prior convictions. On November 25, 1992, he pleaded guilty to criminal possession of a weapon in the third degree and, having already served eleven months in jail, was sentenced to a conditional discharge ("1992 conviction"). On September 23, 1994, he pleaded guilty to criminal sale of cocaine in the second degree and was sentenced to eight years' to life imprisonment ("1994 conviction"). On June 22, 1995, Rivas was found guilty by a jury following trial of sale of cocaine in the first degree and of possession of cocaine in the first degree; he was sentenced to twenty-five years' to life imprisonment ("1995 conviction"). The 1994 and 19953 convictions were affirmed on appeal.
On January 27, 1999, the INS served Rivas with a notice that he is removable pursuant to his 1992 conviction. On September 24, 1999, an immigration judge ordered Rivas removed. The Board of Immigration Appeals ("BIA") affirmed the decision and found Rivas ineligible for relief under Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182 (c). During the pendency of a petition for a writ of habeas corpus challenging the removal decision, the INS and Rivas stipulated to a remand to the BIA for further proceedings regarding the Section 212(c) issue in light of INS v. St. Cyr, 533 U.S. 289 (2001)
On December 7, 2001, the INS served Rivas with a notice of additional grounds for removal based on his 1994 and 1995 convictions. At a January 11, 2002 hearing, Rivas argued before the immigration judge that his 1994 and 1995 convictions were not final since he was challenging them through a petition for a writ of habeas corpus filed in the Eastern District of New York. The immigration judge ruled that the convictions were final for immigration purposes since they were affirmed on appeal, and that Rivas was ineligible for Section 212(c) relief since he had served over five years in orison for an aggravated felony and since his 1995 drug conviction followed a jury trial. On February 26, 2002, the immigration judge ordered Rivas removed. On June 28, 2002, the BIA dismissed Rivas' appeal, and on August 30, 2002, denied his motion to reconsider. On July 11, Rivas filed this petition.
Discussion
Rivas argues that the INS decision was not based on clear and convincing evidence since it relied in part on the indictments which resulted in the 1994 and 1995 convictions. He contends that the indictments are invalid since the Grand Jury proceedings which resulted in those indictments were defective, an argument that he is presenting through his pending habeas proceedings in the Eastern District.
A conviction is final and may be relied upon in removal proceedings when review of the conviction on direct appeal has concluded. Montilla v. INS, 926 F.2d 162, 164 (2d Cir. 1991) A conviction subject to collateral attack is still final for the purpose of immigration review.Agero v. McElroy, 901 F. Supp. 146, 146 (S.D.N.Y. 1995). In any event, Rivas is subject to removal pursuant to his 1992 conviction.
Conclusion
The petition for a writ of habeas corpus is denied.
In addition, I decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). I also find pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. Copgedge v. U.S., 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition and close the case.
The stay of removal is vacated thirty days from the date of this Order.
SO ORDERED