Opinion
Civil Action No. CV-04-0223 (DGT).
March 16, 2005
MEMORANDUM ORDER
Pro se petitioner Andres Acero ("Acero" or "petitioner") filed this petition for habeas corpus pursuant to 18 U.S.C. § 2241, challenging a final order of deportation. Acero asserts that (1) he is not removable because he is a national of the United States; (2) his final removal order is unlawful, because immigration authorities improperly found that he was removable as an alien convicted of an aggravated felony; and (3) he was wrongly denied withholding of removal under the Immigration and Nationality Act ("INA"), § 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under Article 3 of the United Nations Convention Against Torture ("CAT").
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, G.A. Res. 39/46, 39th Sess., U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984).
Background
Acero was born in 1970 and is a citizen of Colombia. He was first admitted to the United States at the age of nineteen months as a lawful permanent resident on March 4, 1972. Declaration of Scott Dunn dated March 9, 2004 ("Dunn Decl.") ¶ 3 and Ex. 1;see also Petition ("Pet.") ¶¶ 6, 7. Since entering the U.S. in 1972, Acero states that he has been to Colombia once, at the age of about four, for a brief visit, but has otherwise been continually within the United States. Pet. at ¶ 8. Acero claims to have registered with the Selective Service Board upon reaching the age of eighteen, that he was in the process of filing for naturalization at the time of his arrest in 1997, and that he "willingly gives and owes allegiance to the United States." Pet. at ¶¶ 10-12; Motion for Reconsideration, at 1.On August 4, 1987, Acero was convicted as a juvenile offender of murder in the second degree after pleading guilty, and sentenced to seven years to life. Dunn Decl. ¶ 4, Ex. 2. After being released on parole, on February 21, 1997 Acero committed the offense of hostage taking in violation of 18 U.S.C. § 1203. According to Acero's later testimony before the Immigration Judge ("IJ"), he had been working for a company that provided process-serving and background investigation services when he was asked by persons he assumed to be Colombian drug traffickers to locate an individual named Maria Edith Rodriguez, who they claimed owed them $500,000. May 21, 2002 hearing transcript at 21-26, attached at Dunn Decl. Ex. 5. Ms. Rodriguez was allegedly laundering money for the Colombians, and at the same time cooperating with the Drug Enforcement Administration. Id. at 22. Acero spent three weeks investigating Ms. Rodriguez's whereabouts, after which he gave the Colombians her address. Id. at 27. Acero accompanied the Colombians when they went to speak with Ms. Rodriguez. Id. The Colombians began speaking with Ms. Rodriguez in the street, but then they pulled her into their car. Id. at 25. The Colombians held Ms. Rodriguez for approximately two hours before releasing her. Id. at 22, 25. Ms. Rodriguez was physically unharmed during the encounter, and none of the other individuals was arrested in connection with the hostage taking. Id. at 22-24.
Acero pled guilty to the charge of hostage taking on July 22, 1997 and was sentenced on February 17, 1999 to a term of imprisonment of fifty-five months. Dunn Decl. ¶ 4. Following his release in March, 2001 after serving forty-seven months of his federal criminal sentence, Acero was taken back into custody by state authorities for violating his earlier parole by being convicted of a federal offense, and began again serving his sentence on the underlying murder conviction. Dunn Decl. ¶ 8.
On June 14, 2001, the Immigration and Naturalization Service ("INS"), now the Bureau of Immigration and Customs Enforcement ("BICE"), Department of Homeland Security, issued a Notice to Appear charging Acero with being removable under Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony as a result of his hostage taking conviction, see INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). Dunn Decl. ¶ 5, Ex. 3. A series of hearings were held in Acero's immigration case beginning on July 18, 2001, at which Acero, through his accredited representative, admitted the allegations in the Notice to Appear, but denied his removability on grounds that he was eligible for withholding of removal under the INA and/or relief under the CAT. Dunn Decl. ¶ 6; Pet. ¶ 16. Specifically, Acero argued that he should not be removed to Colombia, because he fears he would be targeted for kidnaping there by left-wing guerilla and right-wing paramilitary groups. Pet., Ex. B, at 4; May 21, 2004 hearing transcript, Dunn Decl. Ex. 5, at 17. Acero believes he would be in danger on account of his "Americanization" and attendant perceived wealth. Id. Although Acero does not contend that he would be tortured by the Colombian government, he asserts that the Colombian government is unable to control both the guerilla and paramilitary groups. May 21, 2004 hearing transcript, Dunn Decl. Ex. 5, at 17-18.
It is not clear why the INS did not also charge Acero with being removable on account of his murder conviction, but as that charge is not at issue, it is not discussed herein.
On May 21, 2002, the IJ issued an oral opinion finding that Acero's conviction for hostage taking qualified as an aggravated felony for purposes of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), Dunn Decl. Ex. 4, at 3, thus rendering him removable. See INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). The IJ also found that Acero did not belong to any protected group under the INA for purposes of withholding of removal, and that the torture he feared would not be at the hands of the Colombian government or with its acquiescence. May 21, 2002 Oral Decision of the Immigration Judge, Dunn Decl., Ex. 4, at 5, 10. The IJ further found that Acero had not been convicted of a particularly serious crime, which, if he had, would have disqualified him for withholding of removal under the INA, even if he were otherwise able to make a valid claim for withholding of removal. Dunn Decl. Ex. 4, at 9.
Discussion
As an initial matter, the government challenges this court's jurisdiction to review Acero's petition on grounds of ripeness. Because at the time briefs were submitted Acero was serving an indeterminate sentence of seven years to life on his murder conviction as a result of the parole violation that occurred when he committed the offense of hostage taking, respondent contended that Acero's petition was not ripe for review, pointing toSimmonds v. INS, 326 F.3d 351 (2d Cir. 2003) for support. Acero, however, was released from state custody in January, 2005, unlike the petitioner in Simmonds, whose next parole hearing was not scheduled for another ten years after his habeas corpus petition was filed. Simmonds, 326 F.3d at 361. The court inSimmonds held that his claims were ripe for purposes of Article III, but that they were not suitable for current adjudication for prudential reasons, i.e., that parole might never be granted, or that the law could change by the time parole is granted, and noted: "We expressly do not hold here that Simmonds must wait until after his release from state prison to bring his petition, only that his claims are not ripe at the moment."Id. at 359-60 (emphasis in original). Because Acero has already been released from state custody, his claims are ripe for prudential as well as Article III purposes. Indeed, once Acero was informed that he would be released from state custody, he petitioned the court to lift his stay of removal, stating that he preferred removal to the alternative of BICE detention. The court lifted the stay, and it is the court's understanding that Acero in fact has been removed to Colombia and is pursuing his § 2241 petition from outside the United States.
(1)
Acero claims that he is a "national" of the United States, as defined by 8 U.S.C. § 1101(a)(22), and, therefore, not subject to removal. The government argues that Acero's "nationality" claim should be dismissed on the basis that nationality claims must be reviewed in the first instance in the Court of Appeals on a petition for review for a final order of removal, pursuant to 8 U.S.C. § 1252(b)(5), and that Acero failed to seek such review in a timely manner. Acero did not claim status as a national at any of the hearings before the IJ, but first raised the issue in a motion for reconsideration filed with the Board of Immigration Appeals ("BIA") on August 26, 2003. Acero bases his claim to national status on (1) his tenure as a resident of the United States since the age of approximately eighteen months, (2) his registration for the Selective Service at the age of eighteen years, (3) the fact that he was in the process of filing his application for Citizenship, and (4) his affirmation that he willingly gives and owes allegiance to the United States. Pet. ¶ 25; Motion for Reconsideration, at 1. The BIA denied Acero's motion for reconsideration as untimely in an order dated October 17, 2003, noting: "To the extent he contends that he is a national of the United States, we find no evidence in the record supporting such a claim." Dunn Decl., Ex. 7.
Section 1252(b)(5) of the INA is entitled "Judicial review of orders of removal," and provides as follows:
(5) Treatment of nationality claims
(B) Transfer if issue of fact
(A) Court determination if no issue of fact
If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim.
If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of Title 28.
The petitioner may have such nationality claim decided only as provided in this paragraph.8 U.S.C. § 1252
This provision precludes this court from considering, in the first instance, a nationality claim raised in the context of removal proceedings. See Dorival v. Ashcroft, No. 02 Civ. 6162, 2003 WL 21997740, at *6-7 (E.D.N.Y. Aug. 21, 2003) (transferring nationality claim raised in the context of removal proceedings to the Fifth Circuit Court of Appeals, as the petitioner was in custody at the Federal Detention Center in the Western District of Louisiana); Hussein v. INS, No. 01 Civ. 1239, 2002 WL 31027604, at *2 (E.D.N.Y. Sept. 12, 2002) (holding that 8 U.S.C. § 1252(b)(5) precludes the district court from considering a nationality claim in the first instance); see also Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir. 2002) (affirming district court's dismissal of citizenship claim for lack of jurisdiction on the ground that such claims must be brought in the court of appeals); Batista v. Ashcroft, 270 F.3d 8, 12 (1st Cir. 2001) (affirming district court's transfer to court of appeals of habeas petition raising citizenship claim).
Upon transfer, the Fifth Circuit dismissed the case for petitioner's failure to exhaust his administrative remedies with the Board of Immigration Appeals. Dorival v. Ashcroft, 2004 WL 1368920, *1 (5th Cir. 2004).
It would ordinarily be appropriate to transfer to the court of appeals a § 2241 habeas petition claiming nationality, pursuant to 28 U.S.C. § 1631, which provides as follows:
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.See Hussein, 2002 WL 31027604, at *2 (transferring national status claim presented in a § 2241 habeas corpus petition to the appeals court pursuant to 28 U.S.C. § 1631); Batista, 270 F.3d at 11-12.
Transfer is only appropriate, however, to a "court in which the action or appeal could have been brought at the time it was filed or noticed." 28 U.S.C. § 1631. Under 8 U.S.C. § 1252(b)(1), a petitioner must seek review in the court of appeals within thirty days from the date of the final order of removal. See Malvoisin v. INS, 268 F.3d 74, 75-76 (2d Cir. 2001) (dismissing for lack of jurisdiction a petition for review of deportation order filed one day late). In this case, Acero did not file his § 2241 petition until January 16, 2004, more than thirty days after the BIA's October 17, 2003 denial of his motion for reconsideration. He offers no excuse for this late filing. Under these circumstances, transfer is inappropriate under 28 U.S.C. § 1631. See Edwards v. INS, No. 03 Civ. 1509, 2004 WL 315233, *1 (E.D.N.Y. Feb. 17, 2004).
Recognizing that this court lacks jurisdiction to hear Acero's nationality claim, it appears, nonetheless, that the claim lacks merit. Although Acero claims to have been in the process of filing for naturalization, he does not claim that he actually did file for naturalization. Acero points to Lee v. Ashcroft, 216 F. Supp. 2d 51 (E.D.N.Y. 2002), for support of his nationality claim. That case, which has been distinguished and disapproved of by the Third, Fifth and Ninth Circuits as overly permissive, involved a petitioner who had lived in the United States for over thirty years, was married to a U.S. citizen, had applied for naturalization and had signed up for the Selective Service whom the court found to be a U.S. national. Lee, 216 F. Supp. 2d at 53; but see, Salim v. Ashcroft, 350 F.3d 307, 310 (3d Cir. 2003) ("The [Lee] Court found that the petitioner was a `national,' but relied on the petitioner's subjective allegiance to the United States, and did not engage in a complete analysis of what it means to be a `national' of the United States.");Alwan v. Ashcroft, 388 F.3d 507, 513 (5th Cir. 2004) ("Lee perhaps presents a permissive interpretation of the requirements of national status"); Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972 (9th Cir. 2003) ("[T]he court [in Lee] focused primarily on the common-sense meaning of `allegiance to the United States,' without analyzing other clues as to the meaning of `national of the United States."). Because Acero never even filed for naturalization, he does not meet even the softened standard set forth in Lee. Accordingly, his nationality claim is without merit.
(2)
Acero contests his removability on the basis that his offense of hostage taking does not qualify as an "aggravated felony" under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). Acero's petition notes that the IJ found that Acero had not been convicted of a particularly serious crime, and urges that this establishes that his offense cannot be an aggravated felony. Pet. ¶ 24. Acero conflates two distinct concepts: removability of an alien for commission of an "aggravated felony" under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) and ineligibility for withholding of removal under INA § 241(b)(3)(B), 8 U.S.C. § 1231 (b)(3)(B)(ii) for aliens who have been convicted of a particularly serious crime and are a danger to the community.
Unlike Acero's nationality claim, his question as to whether hostage taking qualifies as an aggravated felony is properly brought before the district court on habeas review. See Henderson v. INS, 157 F.3d 106, 120, 122 (2d Cir. 1998) (holding that questions of pure law are properly within the scope of the habeas corpus jurisdiction of the federal courts). Although the BIA's interpretation of immigration laws is entitled to deference, its interpretation of criminal statutes is reviewedde novo. See Dickson v. Ashcroft, 346 F.3d 44, 48 (2d Cir. 2003) ("We review de novo . . . the BIA's interpretation of state or federal criminal statutes); Jobson v. Ashcroft, 326 F.3d 367, 371 (2d Cir. 2003) ("With regard to the standard of review, we have held that while we defer to the BIA's interpretation of the immigration laws, we review de novo the BIA's interpretation of criminal statutes over which it has no special expertise.") (citations omitted).
The statute under which Acero was convicted, 18 U.S.C. § 1203(a), provides as follows:
Except as provided in subsection (b) of this section, whoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or abstain from doing any act as an explicit or implicit condition for the release of the person detained, or attempts or conspires to do so, shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.
Where the conduct required for the offense takes place within the United States, the hostage taking statute does not apply unless at least one of the alleged offenders and/or persons seized or detained is not a national of the United States. 18 U.S.C. § 1203(c). "To obtain a conviction under the Hostage Taking Act, the government must prove that the defendant (1) seized or detained another person, and (2) threatened to kill, injure, or continue to detain that person (3) with the purpose of compelling a third person or governmental organization to act in some way, or to refrain from acting in some way." United States v. Si Lu Tian, 339 F.3d 143, 150 (2d Cir. 2003).
An "aggravated felony" is defined as "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). "Crime of violence", in turn, is defined as
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
8 U.S.C. § 16.
The Supreme Court has held that § 16 "requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner's crime."Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, 381, 160 L.Ed.2d 271 (2004). The Second Circuit, calling this a "categorical approach," has required that "every set of facts violating a statute must satisfy the criteria for removability in order for a crime to amount to a removable offense." Dickson, 346 F.3d at 48. Thus, "only the minimum criminal conduct necessary to sustain a conviction under the given statute is relevant."Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001) (quotingMichel v. INS, 206 F.3d 253, 270 (2d Cir. 2000)).
In Dickson, the Second Circuit held that unlawful imprisonment of a competent adult under New York Penal Law § 135.10 (McKinney 2003), even where the restraint was by deception, was a crime of violence under 8 U.S.C. § 16. The statute in that case provides that "[a] person is guilty of unlawful imprisonment in the first degree when he restrains another person under circumstances which expose the latter to a risk of serious physical injury." N.Y.P.L. § 135.10. The New York first degree unlawful imprisonment statute thus requires by its terms that the restraint involve the risk of serious physical injury, in contrast to the federal hostage taking statute, which is silent as to the risk of physical injury.
The minimal conduct necessary to sustain a conviction for hostage taking under 18 U.S.C. § 1203(a) is "detain[ing]" while "threaten[ing] . . . to continue to detain," which does not necessarily involve the use, attempted use, or threatened use of physical force as required for a "crime of violence" under 8 U.S.C. § 16(a). See United States v. Carrion-Caliz, 944 F.2d 220, 225 (5th Cir. 1991) ("It is important to note what the Hostage Taking Act does not require. First, to seize or detain a hostage, a hostage taker need not use, or even threaten to use,physical force or violence. The cases clearly hold that non-physical restraint — for instance, fear or deception — can be sufficient to restrain a person against her will."); Si Lu Tian, 339 F.3d at 153 (affirming conviction of hostage taking where victim initially consented to be detained subject to a smuggling agreement, noting that "in finding the detention element of a hostage-taking violation met, a jury is entitled to rely on evidence showing that the defendant threatened, frightened, deceived or coerced his hostage so as to cause the hostage to remain under the defendant's control."). For example, a conviction could be obtained where a defendant detained and threatened to continue to detain a hostage by deceiving his hostage so as to cause the hostage to remain under the defendant's control. Thus, applying the categorical approach to the statutory elements of hostage taking leads to the counterintuitive conclusion that hostage taking is not a crime of violence under 8 U.S.C. § 16(a).
Hostage taking does, however, meet the definition of "crime of violence" under 8 U.S.C. § 16(b), in that, "by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." The Supreme Court has noted that § 16(b) "sweeps more broadly than § 16(a)," covering "offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense." Leocal, 125 S.Ct. at 382-83. The Court elaborated that the risk at issue is "that the use of physical force against another might be required in committing a crime," noting that burglary would be covered under § 16(b) "not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime." Id. at 383 (emphasis in original).
No court has yet decided whether hostage taking is a crime of violence under section 16(b), but the closest analogy, at least under New York Penal Law, is to the crime of unlawful imprisonment in the second degree, which is essentially the same crime without the nationality requirements of the counterpart federal law. N.Y. Penal Law § 135.05 (McKinney 2004). Second degree unlawful imprisonment in New York is restraint of another person, where "restrain" means
to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined "without consent" when such is accomplished by . . . physical force, intimidation or deception. . . .
N.Y. Penal Law § 135.00 (McKinney 2004). This statute, too, has eluded judicial review, with the courts passing only on its close, but more serious, cousin, first degree unlawful imprisonment, which, as discussed above in the context of Dickson, explicitly includes the element of a risk of serious physical injury.
Another closely related crime, and one which has been the subject of judicial scrutiny, is kidnaping. Kidnaping statutes vary from one jurisdiction to the next, but the federal kidnaping statute, 18 U.S.C. § 1201(a), does not by its terms require the use of force or the risk of serious physical injury. See 18 U.S.C. § 1201(a) ("Whoever unlawfully seizes, confines,inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom . . . shall be punished by imprisonment. . . .") (emphasis added). The Supreme Court has, nonetheless, stated without explicitly deciding that kidnaping is a crime of violence. See United States v. Rodriguez-Moreno, 526 U.S. 275, 280, 119 S.Ct. 1239, 1243, 143 L.Ed.2d 388 (1999) (considering federal kidnaping statute). Other courts have explicitly so held. See, e.g., United States v. Patino, 962 F.2d 263, 267 (2d Cir. 1992) ("That the crime of kidnapping involves the threatened use of physical force against a person and is thus a crime of violence under [ 18 U.S.C. § 924(c)] cannot be questioned.") (considering federal kidnaping statute);Cartagema-Paulino v. Reno, 2003 WL 21436224, *5 (S.D.N.Y. 2003).
In addition, courts have routinely upheld convictions under 18 U.S.C. § 924(c), which provides enhanced punishment for possession or use of a firearm in a crime of violence, where the underlying "crime of violence" was hostage taking. See, e.g., U.S. v. Lue, 134 F.3d 79, 80 (2d Cir. 1998); U.S. v. Chan, 66 F. Supp. 2d 490, 491 (S.D.N.Y. 1999); U.S. v. Zheng Zhong, 1998 WL 142340, *1 (S.D.N.Y. Mar. 26, 1998). The firearm statute sets forth a test for identifying crimes of violence identical to that found in 8 U.S.C. § 16. See 18 U.S.C. § 924(c)(3). These courts agreed that hostage taking qualifies as a crime of violence without explicitly applying the categorical test, but their acceptance of guilty pleas to indictments charging violations of § 924(c) where the underlying crime was hostage taking reflects a widespread understanding that hostage taking is a crime that, by its nature, involves a substantial risk that physical force may be used. Sharing that understanding, I conclude that hostage taking is a crime of violence for purposes of 8 U.S.C. § 16(b).
Acero's reliance on the IJ's finding that his crime of hostage taking was not a particularly serious crime is misplaced, as the standard for "particularly serious crime" is different than the standard for "aggravated felony." Acero's conviction of hostage taking does not qualify as an aggravated felony under 8 U.S.C. § 16(a), but it does qualify as an aggravated felony under § 16(b), notwithstanding the IJ's determination that it was not a "particularly serious crime" for purposes of 8 U.S.C. § 1231(b)(3)(B)(ii).
Particularly serious crimes are a subset of aggravated felonies, as defined by the statute. 8 U.S.C. § 1231(b)(3)(B) ("[A]n alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime."). Thus, it is possible to be convicted of an aggravated felony without having committed a "particularly serious crime".
(3)
Because Acero is removable for conviction of an aggravated felony as charged in the Notice of Removal, it would be necessary to address his claims for withholding of removal or deferral of removal under the INA and CAT, were it not for the fact that Acero implicitly waived those claims when he requested that his stay of removal be lifted. By letter dated November 21, 2004, Acero wrote,
With the looming certainty of continued detention after release from custody, and understanding that the Honorable Court has not rendered a decision in this matter I make the following request. With extreme regret, I must respectfully ask the Honorable Court to lift the recently imposed Order to Stay Deportation, dated October 24, 2004.
Acero's stated preference for removal to Colombia to detention by the BICE pending the outcome of his petition contradicts his claim that he fears for his safety in Colombia and is fatal to his claims for withholding of removal and relief under the CAT. Evidently, Acero no longer considers Colombia an unsafe environment.
In addition, petitioner's torture claim is subject to the limited scope of review available on a petition of habeas corpus. The IJ in this case found that Acero's fear of persecution on account of perceived wealth and "Americanization" failed to support a claim of persecution on one of the five protected grounds of race, religion, nationality, political opinion or membership in a particular social group. Dunn Decl., Ex. 4 at 11-12. The IJ further found that there was no evidence that the persecution Acero feared was at the hands of or with the acquiescence of the Colombian government. Id. at 10-11. To the extent that these are factual determinations by the IJ, they are not subject to review on habeas corpus. See INS v. St. Cyr, 533 U.S. 289, 302 (2001) (traditionally, the writ of habeas corpus has been available to challenge errors of law).
In any event, Acero's request that the stay of removal be lifted so that he could be removed to Colombia so completely undermines his claims that he would fear for his safety in Colombia that those claims need not be considered further. Accordingly, Acero's requests for deferral of removal and/or relief under the CAT are denied.
Conclusion
For the aforementioned reasons, Acero's habeas corpus petition pursuant to 28 U.S.C. § 2241 is denied. The Clerk of the Court is directed to close the case.
SO ORDERED.