Opinion
EP-00-CA-88-DB.
April, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Petitioner Maria Elena Aguilar-Escarcega's "Petition for Writ of Haveas [sic] Corpus[,] Complaint for Declaratory and Injunctive Relief, and Request for Stay of Deportation" ("Petition"), filed in the above-captioned cause on March 29, 2000. In response to the Petition, Respondent the Immigration and Naturalization Service ("INS") filed a "Motion to Dismiss for Lack of Subject Matter Jurisdiction and Memorandum of Law in Support" ("Motion to Dismiss") on April 13, 2000. On April 14, 2000, the Court held a hearing on the matter.
After due consideration, the Court is of the opinion that the Motion to Dismiss should be granted and the Petition should be dismissed for lack of subject matter jurisdiction, for the reasons set forth below.
Background
Petitioner is a native and citizen of the Republic of Mexico who became a lawful permanent resident alien of the United States on September 25, 1992.
On May 6, 1998, in the Division One Court of Truth or Consequences, New Mexico, Petitioner pled no contest to possessing less than eight ounces of marijuana, a misdemeanor under New Mexico law. As a sentence, Petitioner was placed on a term of supervised probation.
Thereafter, the INS commenced proceedings to remove Petitioner via a Notice to Appear ("NOA") issued on September 15, 1998. The NOA alleged that Petitioner was deportable pursuant to Immigration and Nationality Act ("INA") section 237(a)(2)(A)(iii), codified at 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony, and pursuant to INA § 237(a)(2)(B)(i), codified at 8 U.S.C. § 1227(a)(2)(B)(i), for having been convicted of a controlled substance crime. The INS thereafter struck the allegation that Petitioner was deportable as an aggravated felon pursuant to § 237(a)(2)(A)(iii).
Section 1227(a)(2)(B)(i) provides, in pertinent part: Any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . ., other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.
At some point, Petitioner appeared before an immigration judge ("IJ"), where Petitioner admitted all charges in the NOA and requested relief from removal under INA § 240A(a) — "cancellation of removal." By "Written Decision of the Immigration Judge" entered January 19, 1999, the IJ found that Petitioner did not meet the statutory requirements for cancellation of removal "because [Petitioner] ha[d] not resided in the U.S. continuously for 7 years after having been admitted in any status. [Petitioner] did not have any type of status prior to acquiring her legal permanent resident alien status on September 25, 1992." Thus, because Petitioner already had admitted all allegations in the NOA — namely, that she is not a citizen of the United States and was convicted of possessing under eight grams (but more than thirty grams) of marijuana, a controlled substance, under New Mexico law — the IJ thereafter ordered Petitioner removed from the United States to Mexico.
Petitioner filed an appeal with the Board of Immigration Appeals ("BIA"). By Order entered July 14, 1999, the BIA denied Petitioner's appeal as untimely. Thereafter, by Order entered February 24, 2000, the BIA denied Petitioner's motion to reconsider its previous denial.
The instant Petition followed.
Although there is no indication from the pleadings in this cause, Petitioner's attorney informed the Court orally at the hearing on this matter that Petitioner also filed a petition for review with the Fifth Circuit, which that court subsequently dismissed.
DISCUSSION
No matter the merits of her underlying immigration case, Petitioner cannot proceed in this Court without demonstrating the Court's jurisdiction, and she bears the burden of doing so. See B, Inc. v. Miller Brewing Co., 663 F.2d 545, 595 (5th Cir. 1981). Petitioner claims that the Court has habeas corpus jurisdiction under 28 U.S.C. § 2241 and under the Court's power to issue the "Great Writ." The INS, on the other hand, contends that 8 U.S.C. § 1252(a) strips the Court of jurisdiction as clearly set forth in Max-George v. Reno, 205 F.3d 194 (5th Cir. 2000). The Court agrees with the INS.In Max-George, the Fifth Circuit for the first time examined the jurisdiction-stripping provisions Congress made to the INA via the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) ("IIRIRA"). See Max-George, 205 F.3d at 197. As it pertains to individuals whose deportation proceedings commenced after April 1, 1997, see id. at 197 n. 3, 8 U.S.C. § 1252(a)(2)(C) provides: "Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii), (B), (C), or (D) of this title . . . ." Based on its reading of that provision, the court in Max-George stated clearly, "[w]e hold that IIRIRA's permanent provisions eliminate § 2241 habeas corpus jurisdiction for those cases that fall within § 1252(a)(2)(C). Max-George, 205 F.3d at 199 (emphasis added).
Here, Max-George controls the Court. Because Petitioner was convicted of a controlled substance crime as set forth in 8 U.S.C. § 1227(a)(2)(B)(i), and such cases fall within 8 U.S.C. § 1252(a)(2)(C), the Court finds that IIRIRA eliminates the Court's habeas corpus jurisdiction under 28 U.S.C. § 2241 in this cause.
Max-George also addresses Petitioner's claim that the "Great Writ" gives this Court jurisdiction to review her deportation order. "When faced with petitions for review from criminal aliens . . . which appear barred by § 1252(a)(2)(C), courts must make three specific inquiries. Only if all of them are answered affirmatively must the petition for review be dismissed for lack of jurisdiction." Id. at 199. The Court must consider (1) whether "specific considerations exist that bar jurisdiction;" (2) "whether the particular provision classifying the petitioner under the jurisdiction-stripping provision [is] being constitutionally applied;" and (3) whether "jurisdiction remains to consider whether the level of judicial review remaining in a particular case satisfies the Constitution." Id. at 199-200 (brackets removed in third quotation).
Here, Petitioner was convicted of a controlled substance crime under New Mexico law as defined in 8 U.S.C. § 1227(a)(2)(B)(i). As such, as the Court found above, 8 U.S.C. § 1252(a)(2)(C) bars this Court's jurisdiction. Moreover, there are no facts in the record to indicate that § 1227(a)(2)(B)(i) is being applied to Petitioner in an unconstitutional manner. Petitioner admitted that she was convicted of a violation of New Mexico law "relating to a controlled substance," marijuana. Hence, the Court finds that such classification was applied to Petitioner constitutionally. Finally, the Court finds that review of Petitioner's claims in the court of appeals satisfies the Constitution's requirements with respect to judicial review. See id. at 198. Indeed, Petitioner also filed a petition for review with the Fifth Circuit. Accordingly, the Court is of the opinion that, because all three of the Max-George inquiries yield an affirmative answer, the Petition must be dismissed for lack of jurisdiction.
Accordingly, IT IS HEREBY ORDERED that Respondent the Immigration and Naturalization Service's Motion to Dismiss for Lack of Subject Matter Jurisdiction is GRANTED.
IT IS FURTHER ORDERED that Petitioner Maria Elena Aguilar-Escarcega's "Petition for Writ of Haveas [sic] Corpus[,] Complaint for Declaratory and Injunctive Relief, and Request for Stay of Deportation" is DISMISSED WITH PREJUDICE.