Opinion
No. 02 Civ. 9599 (TPG).
September 30, 2004
OPINION
Petitioner Oumar Kamara was convicted of three counts of sexual abuse and one count of endangering the welfare of a child in Supreme Court, Bronx County. Petitioner has brought a habeas petition under 28 U.S.C. § 2254, alleging (1) that his conviction was based on the testimony of an incompetent witness, (2) that he has been subject to post-release supervision that was not included in his sentencing, and (3) that he was not given theMiranda warnings before he signed a statement to the police.
As part of the § 2254 application, petitioner moves for an order staying an order of removal by the U.S. Citizenship and Immigration Services until the habeas petition is adjudicated. This is the motion now before the court.
The motion is denied.
FACTS
Following the conviction, petitioner was sentenced to two years prison on each of the counts of sexual abuse and to one year prison on the count of child endangerment, with all terms to run concurrently.
Petitioner appealed his conviction on the ground that a six-year-old child could not be sworn as a witness, and therefore there was insufficient evidence to support his conviction. The conviction was affirmed by the Appellate Division, First Department, on November 27, 2001. People v. Kamara, 733 N.Y.S.2d 404 (2001). The Court of Appeals denied leave to appeal on February 1, 2002. People v. Kamara, 740 N.Y.S.2d 703 (2002). Petitioner has not filed a § 440.10 application.
Petitioner has completed his prison terms. However, he has been taken into custody by the USCIS.
Petitioner is presently in the custody of the USCIS at the Montgomery County Correctional Facility in Norristown, Pennsylvania. Prior to February 2004, petitioner was in custody of the USCIS at the Berks County Prison in Leesport, Pennsylvania. Petitioner alleges that prior to the state court conviction he had been granted asylum in the United States, but that his asylum was terminated because of his conviction. He further alleges that the USCIS has ordered him removed from the country. Petitioner has challenged the order of removal in a separate action, alleging that his deportation would violate the U.N. Convention Against Torture. This challenge was denied, and petitioner appealed that denial in the U.S. District Court for the Eastern District of Pennsylvania. That court issued a 30 day stay of the order of removal on March 31, 2003. It is not clear whether that court has issued any further orders.
Petitioner filed his habeas petition with this court on December 3, 2002. His motion for a stay was filed on April 11, 2003. Petitioner argues that unless a stay is granted, he is likely to be removed from the United States prior to the adjudication of his habeas petition.
DISCUSSION
8 U.S.C. § 1252(e)(1) prohibits a court from granting any equitable relief in any action pertaining to an order to exclude an alien except as specifically authorized by statute. See also Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999). None of the specific authorizations apply in this case. Although § 1252 does not prohibit a court with habeas jurisdiction from issuing a stay of deportation pending that review, that exception is limited to cases where the habeas petition challenges the order of removal, not an underlying state court conviction. See Calcano-Martinez v. I.N.S., 533 U.S. 348 (2001); see also Wallace v. Reno, 194 F.3d 279 (1st Cir. 1999). Petitioner's motion cites a number of cases granting a stay of deportation. However, those are cases where the petitioner was either directly appealing the order of removal or collaterally attacking the order of removal through a habeas claim under § 2241. Petitioner's habeas claim in this case is brought under § 2254 and challenges his conviction in state court.This court is without authority to grant petitioner's motion for a stay of removal. The motion is denied.
SO ORDERED.