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August 8, 1990


The opinion of the court was delivered by: Goettel, District Judge.

  In this action, we are presented with what is apparently the first challenge in this circuit, and one of only a couple of challenges nationwide, to the constitutionality of section 242(a)(2) of the Immigration and Nationality Act of 1952 ("INA"), as amended. 8 U.S.C. § 1252(a)(2) (1988). This provision provides for the detainment of an alien who has been convicted of an "aggravated felony," as defined by the INA, without bail pending a determination of deportability.


Petitioner, Anthony Charles Leader, is a thirty year old citizen of Bermuda who has been a lawful permanent resident of the United States since December 16, 1976.*fn1 On April 6, 1989, petitioner was arrested by the New York State Police for the sale of cocaine. Following indictment, on April 13, 1989 petitioner pled guilty before a County Judge in Orange County, New York to attempted criminal sale of a controlled substance in the third degree, in violation of New York's Penal Law. See N.Y.Penal Law §§ 110, 220.39 (McKinney 1987 & 1989). Petitioner was sentenced on May 18, 1989 to one year in prison.

On November 21, 1989, a warrant of arrest was issued by the Immigration and Naturalization Service ("INS"), charging that petitioner was deportable pursuant to the INA because he had been convicted of an aggravated felony, as well as a crime relating to a controlled substance. 8 U.S.C. § 1251(a)(4)(B), (a)(11) (1988).*fn2 On December 1, petitioner completed his state sentence and was thereafter taken into custody by the INS. On December 4, 1989, petitioner was informed that he was being held without bail pursuant to 8 C.F.R. § 242.2 (1990) pending a final determination of deportability.*fn3

Thereafter, petitioner sought a redetermination of his bail status before an Immigration Judge. Specifically, he argued that his conviction pursuant to New York State Penal Law was not covered by section 242(a)(2) of the INA. Immigration Judge Howard Cohen ruled against petitioner on December 11, 1989. Petitioner appealed that decision to the Board of Immigration Appeals ("BIA"), which affirmed Judge Cohen's decision on April 19, 1990. Meanwhile, the deportation hearing was proceeding before Judge Cohen and on May 17, 1990, Judge Cohen concluded that petitioner should be deported.*fn4 Petitioner's appeal of this ruling to the BIA is currently pending.

Presently before this court is a Petition for a Writ of Habeas Corpus, and petitioner's application for declaratory and injunctive relief. Petitioner argues that his state conviction is not covered by the INA's definition of an "aggravated felony" and, therefore, he should be released from INS custody upon the posting of a reasonable bond. Alternatively, petitioner claims that even if his conviction fits within the term's meaning, the statute is unconstitutional to the extent it provides that aliens convicted of aggravated felonies must be held without bail. At a minimum, petitioner contends that a hearing is necessary to ascertain his individual suitability to being released on bail.


A. Applicability of Statute

Section 242(a)(2) of the INA provides that "[t]he Attorney General shall take into custody any alien convicted of an aggravated felony upon completion of the alien's sentence for such conviction. . . . [T]he Attorney General shall not release such felon from custody." 8 U.S.C. § 1252(a)(2) (1988). Aggravated felonies include "murder, any drug trafficking crime as defined in section 924(c)(2) of title 18, or any illicit trafficking in any firearms or destructive devices as defined in section 921 of such title, or any attempt or conspiracy to commit any such act, committed within the United States." 8 U.S.C. § 1101(a)(43) (1988). The relevant aspect of this section is the reference to a drug trafficking crime as defined in section 924(c)(2) of title 18, which includes "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.)." 18 U.S.C. § 924(c)(2) (1988).

This definition of a drug trafficking crime provides the initial basis for petitioner's claim that he is being illegally held without bail. Specifically, petitioner claims that since only federal crimes are listed under the general rubric of drug trafficking crimes, his conviction under New York law does not put section 242(a)(2) into play. Petitioner contends that when Congress intends to make state convictions applicable to a particular federal statute, they can, and in fact have, done so expressly.

We disagree with petitioner's contentions and are persuaded by both the findings of Immigration Judge Cohen and the Board of Immigration Appeals on this very issue. The statute refers to crimes "punishable under" the Controlled Substances Act, as well as two other federal statutes. If Congress had meant to limit the definition of a drug trafficking crime to convictions under the Controlled Substances Act, it would have included such language. In fact, prior to the amendment of section 924(c)(2) pursuant to the Anti-Drug Abuse Act of 1988, a drug trafficking crime was defined as "any felony violation of Federal law involving the distribution, manufacture, or importation of any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802))." 18 U.S.C. § 924(c)(2) (amended 1988). Therefore, a violation of federal law was required prior to the 1988 amendment. We, like Judge Cohen, do not believe the change in language from a "violation of federal law" to crimes "punishable under" federal law is insignificant and find that Congress' clear intent in redefining this term was to include state convictions that could have been brought under federal law if federal authorities had been involved in prosecuting the crimes charged. In re Leader, No. A-35-24B-666 (Dec. 11, 1989) (Cohen, Immigration Judge) (bench decision); see In re Barrett, No. A37-213-802, slip op. at 5-9 (BIA Nov. 7, 1989). The Anti-Drug Abuse Act was targeted at the pervasive drug problem existing in our country. To suggest that only a federal conviction would subject an alien to being held without bail under section 242(a)(2) of the INA pending a resolution of the deportability issue would vitiate the purpose behind the statute. Id., slip op. at 6. While it is certainly not beyond the pale for Congress to enact such an inconsistent statute, we are convinced that Congress intended the statute to apply to both federal and state convictions.

The next question which must be addressed, therefore, is whether petitioner's state law conviction was "punishable under" the Controlled Substances Act.*fn5 Petitioner was convicted, by virtue of his plea agreement, of attempted criminal sale of a controlled substance in the third degree. "A person is guilty of [criminal sale of a controlled substance] when he knowingly and unlawfully sells a narcotic drug," N YPenal Law § 220.39 (McKinney 1989), and cocaine is a narcotic drug as defined by New York's Penal Law. Turning to the federal Controlled Substances Act, section 841(a)(1) of title 21 provides that "it shall be unlawful for any person knowingly or intentionally to distribute or dispense a controlled substance." 21 U.S.C. § 841(a)(1) (1988). Cocaine is also a controlled substance under this Act. 21 U.S.C. § 812(c) (1988). Clearly, if petitioner was convicted under section 220.39 of New York's Penal Law, he also could have been punished under the federal Controlled Substances Act. If anything, New York's law is more restrictive than the federal statute since it requires an actual sale while the federal statute considers distribution or dispensing to be sufficient criminal behavior. In re Leader, No. A-35-24B-666 (Dec. 11, 1989) (Cohen, Immigration Judge) (bench decision).

The remaining question on this issue is whether petitioner's state conviction on attempted sale of a narcotic drug is also an aggravated felony under the INA. This question is easily resolved since the INA expressly states that an aggravated felony includes any "attempt" to commit a crime punishable under, inter alia, section 924(c)(2) of the Controlled Substances Act. Thus, based on this language and our previous determination that petitioner's state conviction was punishable under the Controlled Substances Act, we find that petitioner was convicted of an aggravated felony and, therefore, is properly subject to section 242(a)(2) of the INA. See Gomez-Brito v. INS, No. 90 Civ. 3890, 1990 WL 102200 (S.D.N Y July 11, ...

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