The opinion of the court was delivered by: JOHNSON
Before this Court is Sony Eskite's ("Petitioner") petition for a writ of habeas corpus, pursuant to 8 U.S.C. § 1105a, seeking review of the Board of Immigration Appeals' ("BIA") decision upholding a final order of exclusion. The BIA found Petitioner excludable from the United States, and denied his request to apply for asylum and withholding of deportation. Petitioner also seeks review of the Immigration and Naturalization Service's ("INS") more recent decision denying him parole.
Petitioner is a native and citizen of Haiti who came to this country in 1981. In 1986, he was convicted in Florida for the sale of $ 30 of rock cocaine and for possession with intent to sell or deliver. A Florida state court judge sentenced Petitioner to thirty months in prison. After ten months of incarceration, however, Petitioner was deported to Haiti.
During 1991, Petitioner was a strong public supporter of exiled Haitian president Jean Bertrand Aristide. In October 1991, he participated in a demonstration that called for Aristide's return to Haiti. Petitioner learned that after the demonstration, members of Tonton Macoutes, a militia allied with the Haitian Army, had gone to his house looking for him. When they did not find Petitioner at home, the soldiers executed his father. Petitioner then went into hiding.
Petitioner attempted to flee Haiti by boat in December 1991. The United States Coast Guard interdicted the boat and brought him to the United States Naval Base in Guantanamo Bay, Cuba ("Guantanamo"). While Petitioner was at Guantanamo, the INS interviewed him and determined that he had a "credible fear" of persecution in Haiti. The INS therefore did not immediately repatriate him to Haiti.
Petitioner and other detainees in Guantanamo filed a class action lawsuit against the INS challenging their detention. This Court ordered the INS to allow the detainees to pursue their immigration proceedings in the United States. Haitian Centers Council, Inc. v. Sale, 823 F. Supp. 1028 (E.D.N.Y. 1993). On June 21, 1993, Petitioner arrived in the United States where the INS detained him and placed him in exclusion proceedings.
On January 4, 1994, during a hearing, an immigration judge in New York found Petitioner excludable, and therefore subject to deportation, pursuant to Section 212(a)(2)(A)(i)(11) of the Immigration & Nationality Act (the "Act"), 8 U.S.C. § 1182, as amended (1990) on the basis of petitioner's 1986 drug conviction. 8 U.S.C. § 1182(a)(2)(A)(i)(II) states that an alien who has been "convicted of . . a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21) is excludable."
Following the immigration judge's ruling, Petitioner sought to apply for political asylum and withholding of deportation on the grounds that he has faced past persecution and will face additional persecution if he is returned to Haiti. He also sought a stay of the exclusion proceedings on the grounds that he had applied for clemency from the Governor of Florida. The immigration judge allowed Petitioner to file a legal brief setting forth his analysis as to how the pardon, if granted, would render Petitioner eligible to apply for asylum.
On May 12, 1994, the BIA affirmed the decision of the immigration judge. The BIA stated that Petitioner had been convicted of an aggravated felony, and that he was therefore ineligible for asylum or withholding of deportation. In addition, the BIA rejected Petitioner's application for a stay of the proceedings, reasoning that Petitioner had been convicted of a final judgement and still had not been granted a pardon.
On June 24, 1994, Petitioner filed this petition for a writ of habeas corpus, challenging both his exclusion and the INS's determination that he is per se ineligible to apply for asylum and withholding of deportation. Petitioner challenges the exclusion order on the following four grounds:
(1) that the BIA erroneously denied Petitioner's request to apply for asylum on the basis of its retroactive application of the statutory provision barring aliens from applying for asylum if they have been convicted of an "aggravated felony";
(2) that the BIA erroneously denied Petitioner's application to stay the administrative proceedings based upon its failure to consider the fact that a pardon would remove the statutory prohibitions to Petitioner applying for asylum and withholding of deportation;
(3) that the BIA erroneously denied Petitioner's request to apply for asylum and withholding of deportation based upon an incorrect application of the relevant statutes - 8 U.S.C. § 1253(h)(2) and 8 C.F.R. § 208.14 - which preclude an alien convicted of a particularly serious crime from applying for asylum or withholding of deportation. Petitioner claims that the BIA applied the statutes incorrectly because, contrary to the BIA's decision, his drug conviction is not per se a particularly serious crime. Even if his drug conviction constitutes a particularly serious crime, Petitioner argues that the BIA should have conducted a separate inquiry into whether he is, pursuant to the statutes, "a danger to the community"; and
(4) that this Court should estop the INS from deporting Petitioner due to the "unique circumstances of his detention . . . and his admission to the United States." Petitioner's Mem. at 2.
On December 14, 1994, after the parties had fully briefed this petition, the Governor of Florida granted Petitioner a pardon for his 1986 conviction.
Petitioner also asks this Court to consider his challenge to the INS's determination denying him parole
In reviewing a BIA decision upholding a final order of exclusion, a District Court must limit its review to the administrative record. Kessler v. Strecker, 307 U.S. 22, 83 L. Ed. 1082, 59 S. Ct. 694 (1939). A District Court is not empowered to conduct a de novo review of a final exclusion order. See Correa v. Thornburgh, 901 F.2d 1166, 1171 (2d Cir. 1990). The scope of judicial review in such cases is narrow because the power to expel or exclude aliens is "a fundamental sovereign attribute exercised by the government's political department." Correa v. Thornburgh, 901 F.2d at 1173 (citing cases).
Accordingly, this Court is obliged to uphold the BIA's decision unless it is an abuse of discretion. See, e.g., Dhine v. Slattery, 3 F.3d 613, 619 (2d Cir. 1993). This Court's inquiry is thus limited to whether there was evidence to support the BIA's finding, whether the statutory procedures which govern exclusions have been observed, and whether the petitioner was accorded a fair trial. Kessler, 307 U.S. at 34; United States ex rel. Tom We Shung v. Murff, 176 F. Supp. 253, 257 (S.D.N.Y. 1959), aff'd, 274 F.2d 667 (2d Cir. 1960). If so, the BIA's determination is conclusive. See, e.g., Murff, 176 F. Supp. at 257.
To the extent that some of Petitioner's arguments involve questions of whether the BIA's interpretations of agency regulations were legally erroneous, this Court must apply the standard that governs review of an administrative agency's interpretation of its own regulations. In questions involving construction of rules and regulations by the promulgating agency, the Supreme Court has held that "'the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" United States v. Larionoff, 431 U.S. 864, 872, 53 L. Ed. 2d 48, 97 S. Ct. 2150 (1977) (quoting Bowles v. Seminole Rock Co., 325 U.S. 410, 65 S. Ct. 1215, 1217, 89 L. Ed. 1700 (1945)). See also Ahmetovic v. INS, 62 F.3d 48, 1995 U.S. App. LEXIS 20245, at *7 (2d Cir. 1995) ("[A district court] must give substantial deference to administrative tribunals in their interpretations of statutory law").
Petitioner contends that the BIA erroneously deemed his 1986 drug conviction an "aggravated felony," rendering him ineligible to apply for asylum. He argues that the BIA's retroactive application of the term aggravated felony to include his conviction, which occurred before Congress first ...