Opinion
00 Civ. 9735 (BSJ)
November 7, 2001
Order Opinion
Petitioner Christian Iturralde-Manosalva ("Iturralde"), an alien currently held in INS custody, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. In support of his petition, Iturralde alleges that (1) his deportation order was obtained in violation of INS regulations and his constitutional right to due process; (2) his post-final order detention violates INS regulations and his right to due process; and (3) he is entitled to a waiver hearing, which he never received. For the reasons stated below: Iturralde's petition is denied.
BACKGROUND
The facts relevant to this dispute are largely undisputed. Iturralde, a native and citizen of Ecuador, was admitted to the United States on February 6, 1981. On or about September 30, 1997, he pleaded guilty to criminal possession of a weapon in the third degree. On or about November 21, 1997, he pleaded guilty to attempted criminal possession of a controlled substance in the third degree. He was sentenced to one year on the weapons charge and one to three years on the narcotics charge.
On March 4, 1998, while incarcerated in a New York State prison, Iturralde was served with a Notice to Appear, charging that he was subject to removal from the United States as an alien convicted of a firearms offense based on his weapons conviction. Iturralde's narcotics conviction was not mentioned on the Notice to Appear. A removal hearing commenced before an Immigration Judge ("IJ") on April 15, 1998, during which Petitioner, through counsel, conceded deportability and requested a cancellation of removal under Section 240A of the Immigration and Naturalization Act ("INA"). The Government responded by alleging that Iturralde is statutorily ineligible for cancellation due to his prior narcotics conviction. It is undisputed that this was the first mention by the Government of Iturralde's narcotics conviction.
Iturralde was represented by counsel throughout these proceedings.
At this point in the hearing, Iturralde's counsel requested an adjournment to enable him to "do some research and get documentation" to determine whether Iturralde's conviction qualifies as an aggravated felony (thereby precluding cancellation). Accommodating this request, the IJ adjourned the hearing until June 3, 1998. See Brackney Decl., Ex. A, p. 37. On June 3, 1998, the IJ granted Iturralde's counsel's request for a further adjournment until July 30, 1998. Id. at Ex. A, p. 42-44.
On July 30, 1998, the IJ ordered Iturralde removed from the United States to Ecuador. See Id. at Ex. A, p. 30. In evaluating Iturralde's eligibility for discretionary relief, the IJ found that Iturralde's narcotics conviction rendered him ineligible for cancellation of removal pursuant to section 240A of the INA. Id. The IJ further found that because Iturralde's narcotics conviction rendered him ineligible for a waiver under Section 212(h) of the INA, he was precluded from applying for an adjustment of status pursuant to Section 245(a) of the INA. Id. at Ex. A, p. 29-30.
Iturralde appealed the IJ's decision to the Board of Immigration Appeals ("BIA") on the grounds that his "whole family is here in the United States of America in the State of New York" and he "has no known family members in Equador." See Id. at Ex. A, p. 14; See also Id. at Ex. A, p. 3. The BIA affirmed the IJ's decision ordering that Iturralde be removed. Id. at Ex. A, p. 2-3.
On September 2, 2000, the New York District Director, Edward McElroy, reviewed Iturralde's custody status and determined that he should remain in custody. See Id. It, Ex. B. Iturralde remains in custody without bond or parole.
DISCUSSION
Iturralde first claims that the INS' failure to list the narcotics charge on the Notice to Appear constitutes a violation of section 239 of the INA and therefore of Iturralde's due process rights. Section 239 of the INA requires a Notice to Appear to specify, inter alia, (1) the acts or conduct alleged to be in violation of law, and (2) the charges against the alien and the statutory provisions alleged to have been violated.See 8 U.S.C. § 1229. According to Iturralde, because section 239 is intended to guard the fundamental right of due process by ensuring fair and adequate notice, the INS' violation of this section requires automatic reversal and remand regardless of whether he was actually prejudiced by the violation. See Waldron v. INS, 17 F.3d 511 (2d Cir. 1994) (petitioner need not demonstrate prejudice where the INS violates a regulation intended to guard a fundamental right) (interpreting Montilla v. INS, 926 F.2d 162 (2d Cir. 1991)).
Iturralde's first claim must be rejected. As an initial matter, it appears that Iturralde waived this claim by failing to raise it with either the IJ or the BIA. See, e.g., Able v. U.S., 88 F.3d 1280, 1288 (2d Cir. 1996) ("It is the general rule that `a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself.'") (quoting Howell v. INS, 72 F.3d 288, 291 (2d Cir. 1995)). Although the IJ and BIA clearly were aware of the fact that the Notice to Appear did not list the narcotics conviction, Iturralde never explicitly objected to the Notice to Appear as in violation of INS regulations or his due process rights. Nor did the IJ or BIA address the merits of such a claim.See Waldron, 17 F.3d at 515 n. 7 (no waiver where, although petitioner did not raise the issue until his second appeal to the BIA, the BIA addressed the issue on the merits, apparently excusing petitioner's failure to raise it earlier); Douglas v. INS, 28 F.3d 241 (2d Cir. 1994) (no waiver where, although issue was not raised before the IJ, "the BIA in fact addressed the merits and never clearly stated that the issue was waived"). Iturralde's failure to raise this issue before the IJ or the BIA precludes him from raising it in this forum.
See, e.g., Brackney Decl., Ex. A, pp. 3, 37.
Iturralde suggests that he should be excused from exhaustion requirements because his claims are constitutional in nature. This court disagrees. Although it is true that exhaustion may not be required in certain instances in which a "plaintiff has raised a substantial constitutional question," the mere presence of constitutional issues alone does not create an automatic exception to the exhaustion requirement. See Able, 88 F.3d at 1288. Iturralde'S notice claim, which calls for a determination of whether the INS' actions were in compliance with their own regulations, is not the sort of constitutional claim that warrants excusing exhaustion. See Chan v. Reno, 1997 WL 122783, *11 ("Where a constitutional claim involves procedural errors that can be remedied by the administrative tribunal without addressing the constitutional questions, a party is not excused from exhausting administrative remedies.'); See also Montilla, 926 F.2d at 168 (doctrine providing for automatic reversal regardless of prejudice where INS fails to comply with its own regulations enables the court to avoid deciding the case on constitutional grounds).
Regardless of whether he has waived this claim, however, Iturralde has failed to demonstrate that the INS in fact violated section 239 by not listing the narcotics conviction on the Notice to Appear. As indicated above, section 239 requires the Notice to Appear to indicate (1) the acts or conduct alleged to be in violation of law, and (2) the charges against the alien and the statutory provisions alleged to have been violated.See 8 U.S.C. § 1229(a)(1). The INS complied with this regulation by notifying Iturralde that it was seeking his deportation based upon, among other things, his weapons conviction. That Iturralde's narcotics conviction eventually came into play does not change the analysis. The narcotics conviction became relevant only after Iturralde requested discretionary relief in the form of cancellation of removal pursuant to INA § 240A. In fact, if deportability based on the weapons conviction had been improper, Iturralde would not have requested discretionary relief and the narcotics conviction would not have been raised. Surely, section 239 does not require the INS to anticipate the forms of discretionary relief that an alien may seek and to set forth in the Notice to Appear any acts, conduct or charges that would render the alien ineligible for those forms of relief.
In sum, because Iturralde has failed to prove that the INS violated its own regulations when issuing the Notice to Appear, his request for automatic reversal pursuant to Montilla and Waldron must be denied.
In his submissions, Iturralde also suggests that the INS' actions violated his due process rights, independent of whether these actions violated INS regulations. Iturralde does not, however, provide any evidence in support of this claim, but rather appears to rely solely on the Waldron/Montilla doctrine described above. Indeed, this court is persuaded that no actual due process violation occurred in this case. First, as indicated above, Iturralde was given full notice of the charge and allegations in support of the charge based upon which the Government was seeking deportation; the narcotics conviction became relevant only after Iturralde requested cancellation. Second, once Iturralde was made aware that the narcotics conviction was at issue (even if only in response to his own request for discretionary relief), the IJ twice adjourned proceedings for a total of over three months to enable Iturralde and his counsel to prepare and respond. Moreover, there is no evidence that anything would have changed (including both the actions of the parties and the ultimate outcome) had the narcotics charge actually been listed on the Notice to Appear. In short, all evidence indicates that Iturralde was provided a full and fair hearing during the deportation proceedings.
Iturralde next claims that his continued detention beyond the 90-day "removal period" violates the INS' own regulations and therefore his right to due process. In support of this argument, Iturralde again relies on Montilla and Waldron for the proposition that, where the INS violates its own regulation and that regulation is intended to protect a fundamental right, the appropriate redress is required regardless of whether petitioner can demonstrate prejudice. See supra. Because Iturralde's detention does not violate INS regulations but rather constitutes an appropriate exercise of discretion under the INA, however, this claim also fails.
Section 241 of the INA provides that, generally speaking, "when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days." See 8 U.S.C. § 1231(a)(1)(A). Once this "removal period" has expired, however, the Attorney General (or its designee) may to continue to detain certain criminal aliens, including those, like Iturralde, who have been convicted of an aggravated felony. See 8 U.S.C. § 1231(a)(6). While Petitioner concedes that the INA provides the Attorney General with discretion to retain certain criminal aliens, he appears to challenge the exercise of that discretion in his case. See Petition for Writ of Habeas Corpus, p. 20 ("While [the INA] does allow the Attorney General to retain criminal aliens, that is a permissive regulation, not a mandatory one.").
Petitioner has failed, however, to demonstrate that the District Director (as the Attorney General's designee) abused this discretion by detaining Iturralde pending his deportation. See e.g., Abdul v. INS District Director Edward McElroy, 1999 WL 58678, *5-*6 (S.D.N.Y. 1999) (district director's determination to detain an alien pending deportation is reviewed for abuse of discretion). After considering Iturralde's file record, as well as letters from Iturralde's family, prospective employer and family pastor (submitted by Iturralde), the District Director determined that Iturralde posed a risk of continuing criminal conduct.See Director's Decision to Continue Detention Following Review, p. 1-2. In particular, the District Director based his opinion on (1) Iturralde's 1997 convictions for attempted criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the third degree; (2) Iturralde's failure to fully comprehend the seriousness of his criminal and drug-related behavior; (3) the fact that Iturralde has a final order of removal; and (4) the fact that the letters from the family pastor and prospective employer were general in nature and failed to indicate any prior contact with Iturralde. Id. The District Director cannot be said to have abused his discretion by determining that, based on these factors, Iturralde poses a danger to the community and should remain in custody. See Oliva v. INS, 1999 WL 61818, *5 (S.D.N.Y.) (upholding finding that petitioner poses a danger to the community based on his prior convictions not an abuse of discretion); Perez v. McElroy, 1998 WL 557592, *2 (S.D.N.Y.) (upholding finding that petitioner was danger to community where petitioner was subject to a final order of removal and had pleaded guilty to three prior felonies); Herrera-Mesa v. McElroy, 2000 WL 109052, *5 (S.D.N.Y.) (alien subject to final removal order has strong incentive to flee and therefore presents significant flight risk. In sum, Iturralde's detention since the expiration of the initial removal period on May 26, 1999, does not violate INS regulations or otherwise violate Iturralde's due process rights. See, e.g., Oliva, 1999 WL 61818, *5 (no constitutional violation where petitioner has been in custody for over two years awaiting deportation).See also 8 C.F.R. § 241.4 (setting forth comprehensive procedures governing the detention of criminal aliens awaiting deportation).
Although the INS promulgated new regulations governing the detention of criminal aliens beyond the 90-day removal period, effective December 21, 2000, the District Director's determination to retain Iturralde constitutes a reasonable exercise of discretion under either standard. Compare Oliva, 1999 WL 61818, *5 n. 4 (stating the then-current standard permitting detention of criminal aliens who pose a danger to the community or pose a significant flight risk) with 8 C.F.R. § 241.4 (same).
In his final claim, Iturralde asserts that because the crime based upon which he is being deported occurred prior to the effective dates of the AEDPA and IIRIRA, he is entitled to a waiver of deportation hearing pursuant to former section 212(c) of the INA. This court disagrees. First, because Iturralde neither applied for waiver of deportation nor raised any issues concerning his eligibility before the IJ or BIA, he has waived this argument. See supra p. 5-6. Second, even if Iturralde had not waived this claim, he is not eligible for waiver of deportation because the conviction upon which he was charged as removable occurred after the AEDPA and IIRIRA became effective. That the conduct underlying this conviction occurred before the enactment of these amendments does not change this conclusion. See St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir. 2000) "[I]t is difficult to argue that barring eligibility for discretionary relief on the basis of pre-enactment criminal conduct. constitutes an impermissible retroactive application of a statute. Indeed, we agree that it would border on the absurd to argue that these aliens might have decided not to commit drug crimes . . . had they known that if they were not only imprisoned but also, when their prison term ended, ordered deported, they could not ask for a discretionary waiver of deportation."), aff'd 121 S.Ct. 2271 (2001). See also Domond v. INS, 244 F.3d 81, 85-86 (2d Cir. 2001) (because it is the conviction and not the underlying criminal act that triggers disqualification from § 212(c) relief, the AEDPA applies to alien whose criminal conduct pre-dates but whose convictions post-dates AEDPA's enactment.); Soto v. Ashcroft, 2001 WL 1029130. *5 (S.D.N.Y.) (AEDPA and IIRIRA provisions eliminating section 212(c) relief apply to petitioner whose conviction occurred post-enactment, even though the actual offense occurred pre-enactment); Henriquez v. Reno, 2000 WL 1644487, *4 (S.D.N.Y.) (law in effect on date alien pleaded guilty is controlling).
In 1996, Congress amended the INA through the enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). The AEDPA eliminated the discretionary relief of waiver of deportation under former § 212(c) of the INA for aliens convicted of certain crimes. The IIRIRA, which went into effect on April 1, 1997, repealed section 212(c) in its entirety and created a new procedure, called "cancellation of removal."
CONCLUSION
For the reasons set forth above, Iturralde's Petition for Writ of Habeas Corpus is DENIED. The Clerk of the Court is ORDERED to close this case.
SO ORDERED: