Opinion
No. 02 Civ. 9750 (WHP) (KNF).
February 8, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE WILLIAM H. PAULEY III, UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION
Before the Court is Oreth A. Johnson's ("Johnson") pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2241. Petitioner challenges a final order of removal from the United States issued by the Immigration and Naturalization Service ("INS"). Johnson contends that the INS's Bureau of Immigration Appeals ("BIA") erred when it denied his application for a discretionary waiver of deportation pursuant to the Immigration and Nationality Act ("INA") § 212(c) ("§ 212(c)"), 8 U.S.C. § 1182(c) ( repealed by the Illegal Immigration Reform and Immigrant Responsibility Act ["IIRIRA"] § 304 [b]). In addition, Johnson claims that the BIA's decision deprived him of his constitutional right to due process and his rights under international law.
As of March 1, 2003, the INS ceased to exist as an independent agency and its enforcement functions were transferred to the Department of Homeland Security, United States Immigration and Customs Enforcement (also known as the Bureau of Immigration and Customs Enforcement). See United States v. Nuzzo, 385 F.3d 109, 111 n. 1 (2d Cir. 2004); Caesar v. Ashcroft, No. 04 Civ. 8195, 2005 WL 14686, at *10 n. 2 (S.D.N.Y. Jan. 3, 2005).
The respondent opposes the petitioner's application for a writ of habeas corpus. According to the respondent, insofar as Johnson challenges the BIA's discretionary determination to deny him § 212(c) relief, his petition should be dismissed for lack of subject matter jurisdiction. In addition, the respondent contends that Johnson's due process and international law claims are precluded from federal review because Johnson failed to raise them during administrative proceedings before the BIA; moreover, respondent maintains, the claims are without merit. For the reasons set forth below, I recommend that the petition be denied.
II. BACKGROUND
Johnson is a native and citizen of Guyana who was admitted to the United States as a lawful permanent resident in July 1987. On April 8, 1994, Johnson was convicted and sentenced to sixty (60) days in jail and five years probation based on his plea of guilty to attempted criminal sale of a controlled substance in the third degree in violation of N.Y. Penal Law §§ 110 220.39. On July 28, 1994, following a bench trial in New York State Supreme Court, New York County, Johnson was convicted for first-degree assault with intent to cause physical injury, see N.Y. Penal Law § 120.10(1), first-degree assault with intent to disfigure,see N.Y. Penal Law § 120.10(2), attempted assault in the first degree, see N.Y. Penal Law §§ 110 120.10, and criminal possession of a weapon in the fourth degree, see N.Y. Penal Law § 265.01. Johnson received an unconditional discharge with respect to the first assault charge and the weapons charge and a sentence of 28 months to seven years imprisonment for the second assault charge and the attempted assault charge. The sentence was stayed. In connection with the assault charges, Johnson failed to make a court appearance and a bench warrant was issued for his arrest.
A probation report prepared in connection with Johnson's 1994 assault offenses described the crimes as "vicious and violent." According to the report, following an incident in a fast food restaurant in Pennsylvania Station in Manhattan, near midnight on December 26, 1994, Johnson attacked another customer with a knife and a box cutter. The victim suffered lacerations on his face and left hand, and his left thumb was nearly severed. Johnson reportedly fled the scene, leaving the victim lying a pool of blood, before being apprehended by the police.
On September 22, 1995, Johnson, under an alias, pled guilty in New York State Supreme Court, New York County, to attempted criminal sale of a controlled substance in the third degree,see N.Y. Penal Law §§ 110 220.39, for which he was sentenced to time served and five months' probation. On April 8, 1996, under another alias, Johnson pled guilty, in New York State Supreme Court, New York County, to attempted criminal sale of a controlled substance in the fifth degree, see N.Y. Penal Law §§ 110 220.31, for which he was sentenced to serve 18 months to three years imprisonment.
On July 5, 1996, the INS filed an order to show cause and notice of hearing charging that Johnson's 1994 attempted sale of a controlled substance in the third degree rendered him deportable under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (formerly section 241[a][2][B][i] of the INA) (alien convicted of a controlled substance offense other than a single offense involving possession for one's own use of 30 grams or less of marijuana) and INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (formerly section 241[a][2][A][iii] of the INA) (alien convicted of an aggravated felony). On March 7, 1997, an immigration judge ("IJ") ordered Johnson deported. The IJ had determined, among other things, that Johnson was ineligible for a discretionary waiver of deportation pursuant to § 212(c). According to the IJ, recent congressional enactments had eliminated such relief for a person who, like Johnson, had been convicted for a drug related crime classifiable as an aggravated felony. Thus, the IJ concluded, "by the law" he was barred from granting Johnson the relief he sought.
Former § 212(c), codified at 8 U.S.C. § 1182(c), stated:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General. . . .8 U.S.C. § 1182(c) (repealed) (1996) (quoted in INS v. St. Cyr, 533 U.S. 289, 295, 121 S. Ct. 2271, 2276 [2001]). In 1990, Congress amended § 212(c) to exclude from eligibility for a waiver any alien who had been convicted of one or more aggravated felonies and had served a term of imprisonment of at least five years. See Immigration Act of 1990, Pub.L. No. 101-649, § 511, 104 Stat. 5052 (amending 8 U.S.C. § 1182[c]). On April 24, 1996, Congress limited further the availability of § 212(c) relief through the enactment of § 440(d) of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), which excluded from § 212(c) relief all aliens convicted of certain enumerated offenses regardless of the term of imprisonment served by the alien as a result of the conviction. See AEDPA § 440(d), 8 U.S.C. § 1227 (precluding from discretionary relief aliens convicted of committing, inter alia, an aggravated felony, a drug-related crime, or two or more offenses involving moral turpitude). On September 30, 1996, Congress enacted the IIRIRA, which repealed § 212(c) altogether, and eliminated the proceedings previously known as "deportation" and "exclusion." Section 212(c) was replaced with a different form of discretionary relief from deportation known as cancellation of removal. See IIRIRA § 304(b), 8 U.S.C. § 1229a. Cancellation of removal was made available only to aliens who, inter alia, had not been convicted of an aggravated felony. See § 240A, 8 U.S.C. § 1229b(a).
Johnson did not appeal the order of deportation to the BIA. However, on November 17, 2000, Johnson filed a petition for a writ of habeas corpus, seeking an opportunity to apply for § 212(c) relief. On April 13, 2001, while his habeas corpus petition was pending, Johnson requested the same relief by way of a motion to reopen administrative removal proceedings. On June 25, 2001, the United States Supreme Court ruled, in INS v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 2293 (2001), that "§ 212(c) relief remains available for aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." Following that ruling, an IJ at the Executive Office for Immigration Review granted Johnson's motion to reopen and a hearing was scheduled for November 19, 2001, in York, Pennsylvania. At the scheduled hearing, which was adjourned to and continued on January 17 and May 14, 2002, an IJ granted Johnson's motion to change venue to the Immigration Court in Newark, New Jersey. In light of the IJ's decision to grant Johnson's request for a § 212(c) hearing, the court dismissed his habeas corpus petition for lack of subject matter jurisdiction.See Johnson v. United States INS, No. 00 Civ. 8803, 2002 WL 54420, at *2 (S.D.N.Y. Jan. 9, 2002).
The court's Report and Recommendation, cited here, was affirmed and adopted by the assigned district judge by order dated July 9, 2002.
At the May 14, 2002 hearing, Johnson, appearing with counsel, testified on his own behalf. He stated that his mother, two brothers and three sisters all lived in the United States and that his mother, two of his sisters and one of his brothers were United States citizens. He also testified that he had one child, a daughter, twenty years old, and that she was a legal permanent resident. Johnson stated that although he kept in contact with his mother and siblings, he had recently lost touch with his daughter. Johnson stated that his father still lived in Guyana.
Johnson testified further that he owned no property in Guyana and that he had not returned to that country since 1987. He testified that he had been employed in Guyana as a clerk for a cement company. In the United States, Johnson stated, he had been employed at a health food store and as construction worker, a security guard and a landscaper for the Central Park Conservancy. While he was employed by the Central Park Conservancy, Johnson injured his hand and now receives about $500 per month disability compensation. Johnson stated that if he were deported to Guyana, it would be difficult for him to find work, that it would change his life and be "very hard" on him.
Johnson then testified concerning his convictions and expressed remorse for his past conduct. He stated that while incarcerated he had participated in various programs including a life skills program from which he had learned to alter his behavior. When asked why he wanted to stay in the United States, Johnson stated that he wanted to become a drug counselor so that he could help others. No other witnesses testified at the hearing. At the conclusion of testimony, Johnson's attorney urged the IJ to grant his client a discretionary waiver of deportation based upon Johnson's lengthy residence in the United States, his family relationships in this country and his expression of remorse for his past mistakes.
At the close of the hearing, the IJ rendered an oral decision denying Johnson's application for § 212(c) relief. The IJ noted that at the time of his first deportation hearing in 1997, Johnson had conceded the charges that were the basis of his removal. The IJ concluded that Johnson had been ordered removed on the strength of "clear, convincing and unequivocal evidence." The IJ then stated that because Johnson had met the permanent resident and domicile requirements, and the requirement that he not have served five years imprisonment for an aggravated felony, a waiver of deportation was "in theory available." However, the IJ stated, having weighed the positive and negative factors presented in Johnson's case, he had determined that Johnson was not eligible for § 212(c) relief.
Among the positive factors militating in Johnson's favor, the IJ noted, were his family ties, the amount of time he had spent as a permanent resident in the United States and the degree of hardship that would be involved if Johnson were to return to Guyana. With respect to Johnson's family ties, the IJ concluded that, although Johnson's family members had submitted letters on his behalf in connection with his removal proceedings, none had appeared at the hearing, suggesting that the family ties were "not strong." The negative factors presented in this case, the IJ found, were Johnson's criminal record, which included four convictions for crimes involving drugs and violence, Johnson's failure to appear in court for criminal proceedings and Johnson's 1994 conviction for assault which the IJ characterized as "an egregious offense." The IJ concluded that, on balance, Johnson was not eligible for a discretionary waiver of deportation. Accordingly, the IJ ordered Johnson removed to Guyana.
Thereafter, Johnson filed an appeal with the BIA. On October 7, 2002, the BIA, in a per curiam opinion, dismissed Johnson's appeal. The BIA's decision rendered Johnson's removal order final. See Lleo-Fernandez v. INS, 989 F. Supp. 518, 520 n. 2 (S.D.N.Y. 1998).
On December 10, 2002, petitioner filed the instant application for habeas corpus relief. On January 10, 2003, in order to preserve the court's jurisdiction to reach the merits of this case, the petitioner's removal was stayed. Petitioner's claims are addressed below.
III. DISCUSSION
Jurisdiction
Federal courts have jurisdiction under 28 U.S.C. § 2241 to hear and determine petitions for writs of habeas corpus seeking review of final removal orders, but only with respect to legal or constitutional issues. See Calcano-Martinez v. INS, 533 U.S. 348, 351-52, 121 S. Ct. 2268, 2269-70 (2001). Accordingly, a habeas corpus petition brought pursuant to § 2241 may be used only "to challenge incarceration or orders of deportation as being 'in violation of the Constitution or laws or treaties of the United States.'" Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001) (quoting 28 U.S.C. § 2241[c][3]). "[F]ederal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the IJ and the BIA."Id. at 651; see also Caesar v. Ashcroft, No. 04 Civ. 8195, 2005 WL 14686, at *3-4 (S.D.N.Y. Jan. 3, 2005); Mattis v. Ashcroft, No. 04 Civ. 2333, 2004 WL 2471314, at *2-3 (S.D.N.Y. Nov. 3, 2004).
Denial of § 212(c) Relief
The petitioner appeals from a decision of the BIA denying his request for a waiver of deportation pursuant to § 212(c). Petitioner states that he is seeking "a stay of deportation" and asserts that the IJ erred when he concluded that Johnson had no family ties in the United States. However, this Court has no jurisdiction to grant § 212(c) relief. See Mattis, 2004 WL 2471314, at *2. Moreover, the determination of the IJ and BIA that the equities in Johnson's favor were not sufficient to warrant granting him such relief was a matter of discretion. Therefore, the Court lacks jurisdiction to review Johnson's challenge to the BIA's decision.
Due Process Claim
The Court has jurisdiction to review constitutional claims raised in a habeas corpus petition. In this case, petitioner contends that his due process rights were violated when the BIA improperly found him deportable as an aggravated felon. Johnson also appears to argue that he was improperly subjected to an unconstitutional retroactive application of the immigration laws. In addition, Johnson contends that his deportation would be "contrary to the nation's obligations" under the International Covenant on Civil and Political Rights. The respondent contends that the Court lacks jurisdiction to review these claims because they were not presented to the IJ or BIA. Furthermore, the respondent argues, the claims are without merit.
In his response to the government's opposition to his habeas corpus application, petitioner notes that he did present his due process claims to the BIA in his supplemental brief. Petitioner is correct. Although petitioner's due process and international law claims do not appear to have been raised before the IJ or in petitioner's initial brief in support of his appeal to the BIA, petitioner's supplemental brief on appeal includes a section entitled "Due Process Clause," in which petitioner asserts that due process issues are implicated in this case.
28 U.S.C. § 1252(d)(1) provides, in relevant part: "A court may review a final order of removal only if . . . the alien has exhausted administrative remedies available to the alien as of right." The Second Circuit has determined that this limitation applies to habeas corpus review. See Theodoropoulos v. INS, 358 F.3d 162, 168-71 (2d Cir. 2004). Furthermore, where a petitioner has failed to exhaust his administrative remedies with respect to claims raised in a habeas corpus petition, a district court lacks subject matter jurisdiction to entertain those claims. See id.
In the instant case, a review of the record reveals that petitioner's international law claim was not presented to the IJ or BIA and, therefore, remains unexhausted. Consequently, the Court has no subject matter jurisdiction to consider that claim.See Caesar, 2005 WL 14686, at *9. However, construing petitioner's pro se submissions liberally and "interpret[ing] them to raise the strongest arguments they suggest," Wright v. Comm'r of Internal Revenue, 381 F.3d 41, 44 (2d Cir. 2004), the Court finds that petitioner did exhaust his administrative remedies with respect to his due process claim. Nevertheless, the Court finds this claim to be meritless.
Petitioner asserts that his constitutional right to due process was violated when the BIA improperly found him deportable as an aggravated felon. As noted above, in 1996, the INS determined that Johnson was deportable under the provisions of the INA pertaining to a controlled substance offense (INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227 (a)(2)(B)(i)) and an aggravated felony (INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)). Petitioner's 1994 conviction for attempted criminal sale of a controlled substance in the third degree, which served as the predicate for Johnson's order of removal, is also an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B) (U) (defining aggravated felony to include any "drug trafficking crime," as defined in 18 U.S.C. § 924[c], 18 U.S.C. § 924[c] in turn defining "drug trafficking crime" to include "any felony punishable under the Controlled Substances Act"); 21 U.S.C. § 841(a)(1) (punishing as felony a conviction for knowingly or intentionally distributing or dispensing a controlled substance). Therefore, the BIA properly ordered petitioner removed from the United States as an aggravated felon pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
Johnson also argues that he was improperly subjected to an unconstitutional retroactive application of the immigration laws. Although Johnson does not specify what statutory provisions were applied to him retroactively, he appears to argue that the BIA erred when it barred him from applying for a § 212(c) waiver at the time of his 1997 removal hearing. Since Johnson's 1994 conviction, which served as the basis for his order of removal, was obtained through a guilty plea, the Supreme Court's ruling inSt. Cyr making § 212(c) relief available to aliens who pled guilty prior to the enactments of AEDPA and IIRIRA, applied in his case. However, as discussed earlier in this writing, Johnson was accorded a § 212(c) hearing. Therefore, his claim that he was improperly subjected to an unconstitutional retroactive application of the law is unfounded.
IV. RECOMMENDATION
For the reasons set forth above, it is recommended that petitioner's application for a writ of habeas corpus be denied.V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable William H. Pauley III, 500 Pearl Street, Room 2210, New York, NY 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, NY, 10007. Any requests for an extension of time for filing objections must be directed to Judge Pauley. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).