Opinion
00 Civ. 3250 (AKH)
January 22, 2001
MEMORANDUM AND OPINION DENYING PETITION FOR HABEAS CORPUS
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking review of an INS final order that petitioner be removed to Jamaica.
It appears that petitioner was admitted to the United States on June 2, 1983 as a lawful resident. Thereafter, pursuant to a judgment entered on June 15, 1994 by the New York Supreme Court, Queens County, petitioner was convicted of attempted murder in the second degree, in violation of section 110/125.25 of the New York State Penal Law, as well as criminal possession of a weapon in the second degree (pistol), in violation of section 265.03 of the same law
Under the Immigration and Nationality Act, the crime of attempted murder of which petitioner was convicted is considered an Aggravated Felony, see 8 U.S.C. § 1101 (a)(43)(A)/(U) and (a)(43)(F), subjecting an immigrant to removal from the United States. See 8 U.S.C. § 1227 (a)(2)(A)(iii). The crime of criminal possession of a weapon of which petitioner was convicted is also considered a deportable offense. See 8 U.S.C. § 1227 (a)(2)(C). Accordingly, by order of December 8, 1998, an Immigration Judge ordered petitioner to be removed from the United States to Jamaica. The Board of Immigration Appeals affirmed, by decision dated May 25, 1999. On April 17, 2000, petitioner filed a habeas corpus petition. Pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), the removability of an alien convicted of an aggravated felony was "conclusively presumed," id. at § 1228(c), the proceeding before an Immigration Judge was the "sole and exclusive procedure" for determining if an alien is to be "removed from the United States" id. at § 1229a(a)(3), and there is no judicial review by the district courts id. at § 1229a. A petition for review may be filed in the Court of Appeals. 8 U.S.C. § 1252 (b)(2). The facts found in the administrative record are to be "conclusive" with but on exception — "unless any reasonable adjudicator would be compelled to conclude to the contrary," id. at § 1252(b)(4). All questions of law and fact are to be taken up by the Court of Appeals, "including interpretation and application of constitutional and statutory provisions," id. at § 1252(b)(9), and no other judicial remedy is available on behalf of an alien seeking relief. Id.
In Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir. 2000), cert. granted, 2001 WL 29105 (Jan. 12, 2001) (No. 00-1011), the Court of Appeals held that United States district courts, notwithstanding the provisions above, continue to have jurisdiction to hear and determine petitions for writs of habeas corpus seeking review of final decisions of alien removal. The Court of Appeals ruled that because Congress had not clearly expressed an attempt to eliminate habeas jurisdiction. that jurisdiction should continue in district courts "to consider all claims that are purely legal in nature — including constitutional challenges and claims that the Attorney General misinterpreted the immigration laws." Id. at 334.
Accordingly, I have jurisdiction to entertain the petition, and I therefore proceed to consider if petitioner has advanced any "legal" claim to justify my granting a writ of habeas corpus.
Petitioner argued that if he had been ordered to be deported at or around the time of his conviction by the New York Supreme Court in 1994, or soon thereafter, he could have applied to the Attorney General for discretionary waiver of deportation. This is not a valid constitutional argument. See St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000), cert. granted, 2001 WL 29104 (Jan. 12, 2001) (No. 00-767), where the Court of Appeals held that Congress had the power to eliminate discretionary relief without regard to deportability of people who had previously engaged in criminal conduct. The Court of Appeals ruled:
It would border on the absurd to argue that these aliens might have decided not to commit drug crimes, or might have resisted conviction more vigorously, 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.Id. at 418.
Petitioner has made no showing that he was convicted pursuant to a plea of guilty that had been induced by the belief that he would have received discretionary waiver of deportation, and thus no legal basis to complain of a "legal change that [had] an impact on [his] planning." Id. (quoting Landgraf v. USI Film Prod., 511 U.S. 244, 282-83 (1994)).
Accordingly, for the reasons stated, the petition is dismissed. The Court issues a certificate of appealability solely because the Supreme Court has granted certiorari in both Calcano-Martinez v. INS and St. Cyr v. INS. Fed.R.App.P. 22(b)(1).
The Clerk of the Court is directed to mark this matter as closed.
SO ORDERED.