2. Merits of the Instant Petition
Even if this Court had jurisdiction to consider the merits of the instant petition, a dismissal of the petition would be warranted for reasons stated below.
In 1996, prior to filing of this petition, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, which made substantial changes to Title 8 of the United States Code. These laws replaced those provisions of 8 U.S.C. § 1252 (1994), which had dealt with the detention of aliens with new provisions codified at 8 U.S.C. § 1226 (1996). See 8 U.S.C. § 1226 (1996) (Historical and Statutory Notes, 1996 Amendments).
It is well settled that the IIRIRA's transitional custody provisions are applicable to this case.
See IIRIRA § 303(b)(2); In re Noble, 1997 WL 61453 (B.I.A. 1997); Ahmed, 1997 WL 414119 at *2; Oliva v. INS, 97 Civ. 1480 (JGK) (S.D.N.Y. Dec. 23, 1997). The transition provisions provide that the Attorney General shall assume custody of any lawfully admitted alien who has been convicted of an aggravated felony and may release him only if he can demonstrate to the Attorney General's satisfaction that he is not a danger to the community or a flight risk. See IIRIRA § 303(b)(3)(B)(i); 8 U.S.C. § 1252 (a)(2)(B) (1994).
Petitioner's New York State convictions make him an aggravated felon under 8 U.S.C. § 1101(a)(43). Thus, petitioner must satisfy the Attorney General that he "will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding" in order to be released. IIRIRA § 303(b)(3)(B)(i).
Petitioner has provided little evidence in support for his release. He asks this Court to consider his intention to reform his life and his family ties in the United States. However, it is highly unlikely that these factors alone would satisfy the Attorney General. In particular, family ties in the context of deportation hearing, work against petitioner for they give petitioner an incentive to flee to avoid deportation. See, e.g., Bertrand v. Sava, 684 F.2d 204, 217 n.16 (2d Cir. 1982).
Even under the prior statutory frame work, upon which petitioner relies, the petition is without merit. Under 8 U.S.C. 1252(a)(2)(B) (1994), the six-month limitation is not applicable to aggravated felons like petitioner.
Instead, they were required by statute similar to the transition provisions to show that they were neither a danger to the community nor a flight risk in order to be released. See 8 U.S.C. 1252(a)(2)(B) (1994); Ahmed, 1997 WL 414119, at *2. As discussed in the previous paragraph, petitioner has not met this burden.
For the foregoing reasons, the petition for a writ of habeas corpus is denied without prejudice to refiling upon exhaustion of his administrative remedies.
Dated: New York, New York
January 8, 1998
JOHN S. MARTIN, JR., U.S.D.J.