The opinion of the court was delivered by: SPRIZZO
Relator Otis St. George Morgan ("Morgan"), a native and citizen of Jamaica, West Indies who entered the United States as a permanent resident on June 5, 1993 and is currently in the custody of the Immigration and Naturalization Service ("INS") pending deportation, seeks a writ of habeas corpus declaring that the February 7, 1997 decision of the Board of Immigration Appeals ("BIA") denying his motion to reopen proceedings based upon his eligibility to adjust his status in the United States pursuant to Section 245 of the Immigration and Nationality Act ("INA") was an error as a matter of law and in violation of the United States Constitution. See Petition ("Pet.") dated July 16, 1997 at PP 2, 4, 7, 10. Morgan seeks a stay of deportation and release on parole and/or bond pending a decision of this Court. Id. at PP 11, 12.
The government contends that this petition should be dismissed because this Court lacks subject matter jurisdiction, or in the alternative, that the petition is without merit and should be denied. See Letter from F. James LoPrest, Jr., Special Assistant United States Attorney, to Hon. John E. Sprizzo (August 12, 1997) ("Govt. response").
On January 13, 1995, Morgan pleaded guilty in New York State Supreme Court, Bronx County, to attempted robbery in the first degree, a class C felony, see N.Y. Penal Law §§ 110.00 & 160.15(4) (attempted robbery during the course of which a firearm is displayed), and was sentenced to eighteen to fifty-four months' imprisonment. See Govt. response at 1. On August 22, 1995, Immigration Judge Joe D. Miller found Morgan to be deportable from the United States for having been convicted of a crime involving moral turpitude under section 241(a)(2)(A)(i), 8 U.S.C. § 1251(a)(2)(A)(i) (1994), and a firearms violation under section 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C) (1994), of the INA. See Pet. P 5, Exh. 2 (unnumbered) (Decision of the Board of Immigration Appeals dated February 7, 1997). On November 24, 1995, the BIA dismissed Morgan's appeal of Immigration Judge Miller's decision. See id. at P 6. Thereafter, Morgan filed a motion to reopen with the BIA based upon his eligibility to adjust his status in the United States pursuant to section 245 of the INA as the beneficiary of an approved visa petition filed by his mother, a U.S. citizen. See id. at PP 7, 8. On February 7, 1997, the BIA denied Morgan's motion to reopen because of his conviction for an aggravated felony, and held, as a matter of law, that Morgan was ineligible for a waiver pursuant to section 212(h) of the INA, 8 U.S.C. § 1182(h) (Supp. II 1996).
See id. at P 9, Exh. 2. at 1-2; Petitioner's Memorandum of Law ("Pet. Mem.") dated July 24, 1997, at 3 (unnumbered).
Under section 306 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Div. C, Omnibus Appropriations Act, 1997, Pub.L. No. 104-208, 1996 U.S.C.C.A.N. (110 Stat.) 3009-546, Congress repealed section 106 of the INA, 8 U.S.C. § 1105a (1994), and replaced it with section 242. See § 306(a), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-607 to -612 (codified at 8 U.S.C. § 1252 (Supp. II 1996)). Amended section 242(g), titled "Exclusive Jurisdiction," provides:
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under [the INA].
Pub.L. No. 104-208, § 306(a)(2), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-612 (codified at 8 U.S.C. § 1252(g) (Supp. II 1996)). This section became effective on April 1, 1997, see INS v. Yang, 519 U.S. 26, 136 L. Ed. 2d 288, 117 S. Ct. 350, 352 n.1 (1996), and applies "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under [the INA]." § 306(c)(1), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-612. Since Morgan's petition is clearly a "claim by . . . [an] alien arising from the decision or action by the Attorney General to . . . execute removal orders against [an] alien under" the INA, see also Auguste v. Attorney General, 118 F.3d 723 (11th Cir. 1997), this Court is bereft of statutory jurisdiction and the petition must be dismissed. See also 28 U.S.C. § 2342 (1994); 8 U.S.C. § 1252(b)(2) (Supp. II 1996) (judicial review of orders of removal must be initiated in a court of appeals).
While some courts have concluded that the court has not been divested of statutory habeas corpus jurisdiction by certain other statutory provisions, see Felker v. Turpin, 518 U.S. 651, 135 L. Ed. 2d 827, 116 S. Ct. 2333, 2337-38 (1996) (Antiterrorism and Effective Death Penalty Act (AEDPA)); Yesil v. Reno, 958 F. Supp. 828, 837-38 (S.D.N.Y. 1997) (AEDPA); Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997) (AEDPA), those cases were not interpreting the aforesaid amendment which specifically mandates that result, and where no inference of repeal by implication is or can be an issue. That conclusion is further supported by the fact that the amended statute expressly preserves habeas corpus jurisdiction in certain specified situations. Thus, the statute provides habeas corpus jurisdiction with respect to certain determinations made by immigration officers in asylum interviews and hearings. Compare 8 U.S.C. § 1252(g) (Supp. II 1996) (addressing "exclusive jurisdiction" of federal courts with respect to the execution of removal orders) with 8 U.S.C. § 1252(e)(2) (Supp. II 1996) (addressing habeas corpus proceedings with respect to the judicial review of orders under section 1225(b)(1) of the INA).
In any event, even if the Court had either constitutional or statutory jurisdiction to review the merits of petitioner's claim, that claim must be denied on the merits. As a convicted aggravated felony offender, petitioner is clearly not eligible to adjust his status under 8 U.S.C. § 1252(a)(2)(C). See 8 U.S.C. § 1252(a)(2)(C) (Supp. II 1996) ("No Court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) . . .").
Therefore, relator's detention is neither unlawful nor unconstitutional.
For the foregoing reasons, Morgan's petition must be dismissed. The Clerk of Court shall ...