Summary
observing that alien's state misdemeanor criminal sale of marijuana conviction did not support removal under INA § 237
Summary of this case from McClatchie v. Immigration Naturalization ServiceOpinion
01 CV 6588 (SJ)
April 16, 2003
Dione M. Enea, Esq., ROSLYNN R. MAUSKOPF, ESQ., Brooklyn, New York, for Respondents
MEMORANDUM AND ORDER
Presently before the Court is the application of Petitioner Jewan Singh ("Petitioner") for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging both his final order of removal and his continued detention pending removal. For the reasons stated herein, the petition is dismissed.
BACKGROUND
Petitioner is a native and citizen of Guyana who was admitted to the United States as a lawful permanent resident on November 7, 1993. (Declaration of Dione M. Enea, dated November 30, 2001 ("Enea Decl"), Ex. 1, Immigrant Visa and Alien Registration.) He is the father of a United States citizen child. On May 19, 2000, he was convicted in the Criminal Court of the City of New York, County of Queens, of criminal sale of marijuana in the fourth degree, in violation of section 221.40 of the New York Penal Law, and was sentenced to one year conditional discharge. (Enea Decl., Ex. 3, Record of the Criminal Court.) On January 16, 2001, the Immigration and Naturalization Service ("INS") issued him a Notice to Appear, charging him with removability pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), as an alien convicted of an aggravated felony, and Section 237(a)(2)(B)(i) of the INA, as an alien convicted of a violation involving a controlled substance. (Enea Decl., Ex. 5, Notice to Appear.) The INS transferred him to its facility in Oakdale, Louisiana, and commenced removal proceedings against him. (Enea Decl., Ex. 9, Notice to EOIR.) Petitioner appeared before Immigration Judge Charles A. Weigand, III ("the IJ"), without an attorney. The IJ found that Petitioner was not eligible for any relief from removal, and ordered him removed to Guyana. (Enea Decl., Ex. 11, Oral Decision of the Immigration Judge.) Petitioner appealed that decision to the Board of Immigration Appeals ("BIA"), contesting the IJ's finding of removability, asserting that the IJ committed an abuse of discretion by not permitting him to apply for relief from removal, and challenging both his conviction and the definition of his conviction as an "aggravated felony. " (Enea Decl., Exs. 12 13, Notice of Appeal and Respondent's Appeal Brief.) On September 25, 2001, the BIA affirmed the decision of the IJ and dismissed the appeal (Enea Decl., Ex. 14.) Petitioner filed the instant petition on October 3, 2001.
DISCUSSION
I. Jurisdiction
Federal courts retain jurisdiction to review orders of removal through petitions for habeas corpus relief under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 289, 314 (2001) (rejecting the government's argument that sections of AEDPA and IIRIRA stripped courts of jurisdiction over § 2241 habeas corpus petitions). However, the scope of jurisdiction is limited to consideration of pure questions of law and constitutional questions; it does not extend to the review of the factual findings or the discretionary decisions made by the Attorney General or the agencies under his control. See Calcano-Martinez v. INS, 232 F.3d 328, 342 (2d Cir. 2000) (holding that federal courts retain jurisdiction to review "purely legal statutory and constitutional claims"). Such discretionary decisions may only be reviewed for violations of the Constitution or laws and treaties of the United States. See 28 U.S.C. § 2241(c)(3). Although the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.L. No. 104-132, 110 Stat. 1268, 1269, 1277) ("AEDPA") and the Illegal Immigration Reform and Responsibility Act of 1996 (Pub.L. No. 104-208, §§ 303(a), 371(b)(5), 110 Stat. 3009-585, 3009-645) ("IIRIRA") restricted judicial review of INS decisions made under § 236, those restrictions apply to "challenges to operational decisions, rather than to the legislation establishing the framework for those decisions." Parry v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999).
The United States Attorney argues that Petitioner's case should be dismissed or transferred to the Western District of Louisiana, on the grounds that this Court does not have personal jurisdiction over Petitioner's custodian. Petitioner named the Attorney General of the United States as his custodian and a proper respondent in this case, in addition to the Commissioner of the INS and the New Orleans District Directors of the INS. He also named the Officer in Charge at the Federal Detention Center in which he is currently held. The Government asserts that Petitioner's only custodian is the warden of the Federal Detention Center in Louisiana, as the official who has day-to-day control over Petitioner, and that this Court does not have personal jurisdiction over her.
This Court finds that the Attorney General is a proper custodian of an alien detained in any INS facility. See, e.g., Alcaide-Zelava v. McElroy, Nos. 99 Civ. 5102, 99 Civ. 9999, 2000 WL 1616981, at *4-*5 (S.D.N.Y. Oct. 27, 2000) (citing and comparing the conflicting cases in the Eastern and Southern Districts of New York, which have split on the issue of whether the Attorney General is a proper custodian for such cases); Pena-Rosario v. Reno, 83 F. Supp.2d 349, 362 (E.D.N.Y. 2000) (finding the Attorney General to be a proper respondent); but see Guerrero-Musla v. Reno, No. 97 Civ. 2779, 1998 WL 273038, at *1 (S.D.N.Y. May 28, 1998) (finding that the Attorney General is not proper respondent); see also Henderson v. INS, 157 F.3d 106, 122-28 (2d Cir. 1998) (offering a thorough analysis of the issue, but declining to resolve this "difficult question"). The Attorney General has the power to produce, detain, or release such individuals and is the ultimate decision-maker on discretionary matters concerning the INS and removable aliens. See 8 U.S.C. § 1103(a)(1) ("The Attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens."); see also Henderson, 157 F.3d at 126 ("[T]he Attorney General has the power to produce the petitioners, remains the ultimate decisionmaker as to matters concerning the INS, and is commonly designated a respondent in these cases, even when personal jurisdiction over the immediate custodian clearly lies."). Congress has specifically designated the Attorney General as the legal custodian of aliens. See 8 U.S.C. § 1222(a) [1226(c)(1)] ("The Attorney General shall take into custody any alien who [is deportable or inadmissible for having committed a crime].").
Moreover, the location of custody and the identity of the day-to-day custodian frequently change when detainees are transferred among IKS facilities, all of which are under the control of the Attorney General.See Arias-Agramonte v. Comm'r of INS. No. 00 Civ. 2412, 2000 WL 1617999, at *8 (S.D.N.Y. Oct. 30, 2000). Petitioner, like many other aliens in removal proceedings, was picked up by the INS in the state of his residence and the location of his criminal activity and incarceration and involuntarily transferred to the INS detention facility in Oakdale, Louisiana. If the local INS district director or the warden of the federal facility were to be considered the only custodian for jurisdiction purposes, the government would be able to forum-shop at will, merely by transferring prisoners or detainees to the location of its choice. "[T]here is a compelling practical concern that the government can seriously undermine the remedy of habeas corpus by detaining so large a number of aliens in one facility that the local district court is overwhelmed by a flood of habeas petitions."Alcaide-Zelava 2000 WL 1616981, at *4 (internal quotations and citations omitted). This Court has personal jurisdiction over the Attorney General. See Arias-Agramonte, 2000 WL 1617999, at *9.
II. Petitioner's "Conviction" of an "Aggravated Felony"
Petitioner contends that he is not removable as an alien convicted of an aggravated felony on the ground that he was not "convicted" of an "aggravated felon" by the New York State court. Thus he challenges both his conviction, and its definition as an aggravated felony in the Immigration context.
First, the government concedes that Petitioner's conviction for Criminal Sale of Marijuana in the Fourth Degree, as a state narcotics offense that was classified as a misdemeanor, is no longer classified as an aggravated felony by the BIA. (Letter from Dione Enea of 12/12/02 ("Enea Letter"), at 2.) The BIA has also explicitly noted that Petitioner is no longer removable pursuant to section 237(a)(2)(A)(iii) of the INA. (Enea Letter, Attach. A (Nov. 5, 2002 Decision of the BIA).) However, the BIA reiterated the grounds for Petitioner's removal under section 237(a)(2)(B)(i) of the INA, as an alien convicted of a controlled substance violation.
In "Petitioner's Supplemental and Amended Pleading" ("Amend.") filed on January 24, 2003, Petitioner argued that he should also not be deportable pursuant to section 237(a)(2XB)(i). He cites the BIA's holding in Matter of Santos-Lopez, 23 I N Dec. 420 (BIA 2002) for the proposition that his conviction does not constitute a "drug trafficking crime." (Amend., at 3.) Whether or not Petitioner's crime is defined as a "drug trafficking crime" or an "aggravated felony" is irrelevant for purposes of Section 237(a)(2)(B)(i). That section makes the conviction of any controlled substance violation, other than the possession for one's own use of a less than 30 grams of marijuana, a deportable offense. Despite Petitioner's claims to the contrary (Amend., at 4), his conviction was for criminal sale of marijuana, and is thus not excepted by Section 237(a)(2)(B)(i).
Second, Petitioner also challenges the conviction itself. He argues that he wasn't actually "convicted" on the charge, because he was sentenced to a one-year conditional discharge, with the understanding that the charge could later be expunged from his record. (Pet. at 3; Reply at 20.) Respondent counters that this disposition is defined as a conviction for immigration purposes.
Under the INA, as amended by IIRIRA, "[t]he term `conviction' means, with respect to an alien, a formal judgment of guilt of the alien entered by a court, or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed." 8 U.S.C. § 1101 (a)(48)(A). The BIA has interpreted this definition of conviction for immigration purposes to include dispositions in which there was a finding of guilt and the imposition of probation. See Matter of Punu, 221. N. Dec. 224 (BIA 1998) ("Congress has clearly and unambiguously defined the term `conviction' for immigration purposes and thus has spoken directly to the issue before the Board. Congress has expressly stated that its intent in enacting section 322 of the IIRIRA was to `broaden the scope of the definition of conviction' beyond that adopted by the Board of Immigration Appeals in Matter of Ozkok." (quoting H.R. Conf. Rep. No. 104-828, at 224 (1996)). Federal courts must give deference to agency interpretations of ambiguous Congressional enactments. See Chevron v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984).
This definition accords with New York law. New York Penal Law § 60.01 authorizes courts to impose a revocable sentence, including a sentence of conditional discharge "upon a person convicted of an offense." McKinney's Penal Law § 60.01. See also McKinney's Penal Law § 65.05(b) (describing the terms of a sentence of conditional discharge). "A revocable sentence shall be deemed a tentative one to the extent that it may be altered or revoked in accordance with the provisions of the article under which it was imposed, but for all other purposes shall be deemed to be a final judgment of conviction." McKinney's Penal Law § 60.01(2)(b).
The Court finds that Petitioner was convicted for immigration purposes. The Criminal Court entered a judgment against him on May 19, 2000. The original court papers clearly indicate that "Defendant was convicted of Penal Law 221.40" and that he was sentenced to a one-year Conditional Discharge and a fine of $90. (Enea Decl. Ex. 3, Conditional Discharge Record.) Thus, Petitioner was adjudged guilty and a penalty, including a fine and a sentence, was entered against him. Petitioner stands convicted of a violation of a state law relating to a controlled substance, other than a single offense involving possession for one's own use of 30 grams or less of marijuana. The IJ properly found that Petitioner was convicted for INS purposes, and that that he is removable from the United States pursuant to Section 237(a)(2)(B)(i) of the INI A.
III. Eligibility for Relief under Section 240A of the INA
Although Petitioner did not specifically request relief under Section 240 A of the INA, 8 U.S.C. § 1229b, ("§ 240A") in his habeas petition, he has raised that issue in his proceedings before the BIA, which he appeals here. Section 240A of the INA provides for discretionary relief from deportation, known as cancellation of removal, in certain circumstances. See 8 U.S.C. § 1229b. An alien may be eligible for relief under § 240A, if he or she "(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony" 8 U.S.C. § 1229b(a). The BIA found that Petitioner is not eligible for relief under this provision, (Enea Letter, Attach. A.) The Court finds that the BIA properly applied the law to his case.
Although Petitioner's crime is no longer defined as an "aggravated felony" by the BIA, he does not meet the residency requirements of § 240A. The evidence available to the Court indicates that Petitioner first entered the United States as a lawful permanent resident on November 7, 1993. His period of continuous residency is deemed to end, for purposes of the removal statutes, at the time he committed the crime that serves as the basis for his removal order. See 8 U.S.C. § 1229b(d)(1) ("For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end . . . when the alien has committed an offense . . . that renders the alien . . . removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title."); see also 8 U.S.C. § 1227(a)(2)(B)(i) ("Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable."). Petitioner was convicted on May 19, 2000. Thus, his period of continuous residency in the United States is less than the seven years required by 8 U.S.C. § 1229b(a)(2). Accordingly, he is ineligible to seek discretionary relief from removal under the provisions of Section 240A.
IV. Eligibility for Relief under Sections 212(c) and 212(h) of the INA
Petitioner urges this Court to remand his case to the Immigration Court in order for it to consider his claims for relief under former § 212(c) and § 212(h) of the INA. Respondent argues that Petitioner's petition should be dismissed for failure to exhaust these claims, because Petitioner did not raise any of these grounds for relief in the Immigration Court or before the BIA. (Resp. at 20.) See 8 U.S.C. § 1252(d) ("A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right."); see also Lleo-Fernandez v. INS. 989 F. Supp. 518, 519 (S.D.N.Y. 1998) ("[A]liens challenging detention by INS must first exhaust administrative remedies before obtaining habeas review."). However, the Court finds that these claims were exhausted. During Petitioner's immigration hearing, the IJ specifically considered whether there was any possibility of relief from removal, and found that there was not. (Enea Decl. Ex. 10, at 8-10; Ex. 11, at 2.) Petitioner specifically raised this issue in his appeal, claiming that "[t]he Immigration Judge abuse [sic] his discretion by not allowing the Respondent to apply for relief from removal." (Enea Decl. Ex, 12.) The BIA did not specifically mention this ground, but found that the IJ's decision was correct. (Enea Decl. Ex. 14.)
In the instant Petition, Petitioner argues that the IJ "abused his discretion by finding the petitioner removable with no form of relief." (Pet. at 22.) However, the Court finds that the IJ did not abuse his discretion, because Petitioner was statutorily ineligible for relief under either provision, and thus the IJ had no discretion to exercise. Prior to 1996, certain classes of removable aliens had the ability to seek a discretionary waiver of deportation under § 212(c) of the INA. See 8 U.S.C. § 1182(c) (repealed) (1994). Then, § 440(d) of AEDPA limited the availability of discretionary waivers of deportation for aliens convicted of aggravated felonies, and § 304 of IIRIRA eliminated this relief altogether for this class of aliens. The Supreme Court recently limited the retroactive application of these provisions, and granted discretionary waiver hearings to aliens who pled guilty to their aggravated felony convictions before the passage of the statutes.St. Cyr v. INS. 533 U.S. 289 (2001). However, this exception, and thus the availability of relief under § 212(c), is not available to Petitioner in the instant case, because he pled guilty in 2000, long after the passage of AEDPA and IIRIRA.
Section 212(h) of the INA provides for the availability of a waiver of excludability for certain classes of aliens who are the spouse, parent, son, or daughter of a United States citizen or lawful permanent resident. Section 212(h) waivers are not available to aliens who are removable on the basis of a conviction for a controlled substance violation, other than those for a single offense of simple possession of thirty grams or less of marijuana." 8 U.S.C. § 1182(h) (Supp. V 1999). Because Petitioner was convicted of criminal sale of marijuana, he is statutorily barred from relief under § 212(h).
V. Petitioner is not Detained Pursuant to Section 236(c) of the INA
In addition to relief from removal, Petitioner also asks this Court to grant bond pending the disposition of his removal proceedings. He contends that he is being detained pursuant to Section 236(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c) ("§ 236(c)"), as amended by IIRIRA, and that this section is unconstitutional as applied to him, because it mandates his detention without giving him an opportunity to demonstrate that he is not a danger to society or a risk of flight. Section 236(c) of the INA provides that "The Attorney General shall take into custody [certain removable or inadmissible aliens] . . . when the alien is released." 8 U.S.C. § 1226(c)(1). Thus, § 236(c) prohibits bail for aliens during the pendency of their removal proceedings.
The Court does not consider Petitioner's "as applied" challenge because he is not being held pursuant to § 236(c). At the time (hat Petitioner filed his petition, a final order of removal had already been entered against him. Thereafter, he was being held pursuant to § 241(a)(2) of the INA, 8 U.S.C. § 1231(a)(2), which mandates detention during the 90-day "removal period" following the entry of a final order of removal. The removal period may be extended and detention continued if removal is delayed through actions or inactions by the alien. 8 U.S.C. § 1231(a)(1)(C). Petitioner has remained in detention while his petition for habeas corpus was pending. Now that his petition is decided, the removal period may recommence. There is no indication that the likelihood of removal is too remote to justify continued detention.See Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (After a reasonable post-removal period, if "the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing.")
CONCLUSION
For the foregoing reasons, Petitioner's application for a writ of habeas corpus is denied, As Petitioner has failed to show the denial of a constitutional right, a certificate of appealability will not be issued. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. The Clerk of the Court is directed that this Order closes this case.
SO ORDERED.
JUDGMENT
A Memorandum and Order of Honorable Sterling Johnson Jr., United States District Judge, having been filed on April 15, 2003, denying petitioner's application for a writ of habeas corpus; declining the issuance of a Certificate of Appealability; and certifying pursuant to 28 U.S.C § 1915(a)(3) that any appeal from the Court's Order would not be taken in good faith; it is
ORDERED and ADJUDGED that petitioner take nothing of the respondents; that the application for a writ of habeas corpus is denied; that a Certificate of Appealability shall not issue; and that pursuant to 28 U.S.C. § 1915(a)(3) any appeal from the Court's Order would not be taken in good faith.