Opinion
94 Cr. 0033 (RPP).
February 3, 2010
OPINION AND ORDER
Rafael Brito, appearing pro se, moves this Court to order his immediate deportation. Mr. Brito pled guilty to conspiracy to possess with intent to distribute cocaine base ( 21 U.S.C. § 846) in 1994. In 1997, he was sentenced to time served with five years of supervised release. In January 2002, the Probation Office reported to the Court that Mr. Brito violated the terms of supervised release and requested that the Court take action. The Court ordered Mr. Brito to appear in February 2002, but Mr. Brito failed to appear on the summons. In October 2008, Mr. Brito was arrested for a criminal possession of a controlled substance, to which he pled guilty in state court. In July 2009, Mr. Brito was brought before the Court on the matter of the outstanding violations of his supervised release. On September 17, 2009, Mr. Brito admitted guilt as to two of the specified violations of his supervised release, and the Court scheduled a sentencing hearing. On November 17, 2009, the Court sentenced Mr. Brito to a term of twelve months, to run concurrently with the sentence he was serving for his conviction in state court. Mr. Brito is a citizen of the Dominican Republic who is present unlawfully in this country, and it appears that ICE has placed a detainer on Mr. Brito.
Mr. Brito now moves this Court for relief from his sentence, namely that the Court order Immigration and Customs Enforcement ("ICE") to immediately commence deportation proceedings, prior to the completion of his prison sentence. Mr. Brito relies upon 8 U.S.C. § 1252(h)(2)(A), which governed early deportation, but that section of the statute has since been amended and is now codified as 8 U.S.C. § 1231(a)(4)(B). The current provision reads: "The Attorney General is authorized to remove an alien in accordance with applicable procedures under this chapter before the alien has completed a sentence of imprisonment . . . in the case of an alien in the custody of the Attorney General, if the Attorney General determines that (I) the alien is confined pursuant to a final conviction for a nonviolent offense (other than an offense related to smuggling or harboring of aliens or an offense described in section 1101(a)(43)(B), (C), (E), (I), or (L) of this title and (II) the removal of the alien is appropriate and in the best interest of the United States. . . ." 8 U.S.C. § 1101(a)(43)(B) includes drug trafficking crimes, as defined by 18 U.S.C. § 924(c). Mr. Brito pled guilty to violating 21 U.S.C. § 846, which is a felony under the Controlled Substances Act and a drug trafficking crime, as defined by 18 U.S.C. § 924(c). Therefore, he is ineligible for removal prior to the completion of his sentence of imprisonment and his motion is denied.
Pub.L. 104-208, Title III, §§ 305-306, 110 Stat. 3009, 3009-598 to 3009-607.
IT IS SO ORDERED.