subsection (43)(G) does not require that the theft offense be a
felony under federal law. In fact, subsection (43) expressly
states that "[t]he term [`aggravated felony'] applies to an
offense described in this paragraph whether in violation of
Federal or State law . . ." (Emphasis added.) Since Jaafar was
sentenced to a term of imprisonment of one year, his petit
larceny conviction is an aggravated felony for purposes of §
1101(a)(43). See Graham, 169 F.3d at 790-91 (reference to "term
of imprisonment" in § 1101(a)(43)(G) is to term actually
imposed, regardless of statutory maximum or minimum).
An additional reason that petitioner is ineligible for relief
is that to be eligible for naturalization, he must show that he
"has been and still is a person of good moral character . . ."
during the required statutory period. 8 U.S.C. § 1427 (a)(3).
Given Jaafar's continual brushes with the law, he is hardly in a
position to establish that prerequisite. In fact, INS regulations
specifically provide that an applicant "shall be found to lack
good moral character . . ." if he has been convicted of an
aggravated felony as defined in § 1101(a)(43) on or after
November 29, 1990, or if he has "[v]iolated any law of the United
States, any State, or any foreign country relating to a
controlled substance, provided that the violation was not a
single offense for simple possession of 30 grams or less of
marijuana. . . ." 8 C.F.R. § 316.10 (b)(1). The marijuana
statute under which Jaafar was convicted, N.Y. Penal L. §
221.25, requires that the substance containing marijuana must
weigh more than sixteen ounces, which is far greater than thirty
Because he is plainly ineligible for naturalization, Jaafar
cannot prevail on either his due process or ineffective
assistance claims. In order to prevail on either, Jaafar would
have to show that the alleged violations of his rights prejudiced
him, that is, that they adversely affected the outcome of the
prior proceedings. Hartooni v. I.N.S., 21 F.3d 336, 340 (9th Cir.
1994). Clearly these alleged violations did not affect the
ultimate outcome here, since Jaafar is not eligible for
naturalization in any event.
Petitioner's claim that he would not have pleaded guilty in
state court had he known the effect that could have on his
naturalization proceedings falls for several reasons. First, it
is the fact of conviction, not the underlying circumstances
surrounding the conviction, that is to be considered in
determining questions of removability. Contreras v. Schiltgen,
151 F.3d 906, 908 (9th Cir. 1998) (habeas petitioner cannot
collaterally attack state court conviction forming the basis for
INS's detention of petitioner). Moreover, "an attorney's failure
to advise a client that deportation is a possible consequence of
a guilty plea does not constitute ineffective assistance of
counsel." United States v. Banda, 1 F.3d 354, 355 (5th Cir.
1993); accord United States v. Yearwood, 863 F.2d 6, 7 (4th Cir.
1988); United States v. Campbell, 778 F.2d 764, 768 (11th Cir.
1985); United States v. Gavilan, 761 F.2d 226, 228 (5th Cir.
1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.
1975). A guilty plea is also not rendered involuntary by the
defendant's lack of awareness that he might be subject to removal
based upon his conviction. Yearwood, 863 F.2d at 8; Santelises,
509 F.2d at 704. Accordingly, petitioner's claims are without
Petitioner's petition for a writ of habeas corpus is dismissed.
Petitioner's Motion Requesting Bond (Docket Item 5) is dismissed
Further, because the issues raised in the petition are not the
type that a court could resolve in a different manner, and
because these issues are not debatable among jurists of reason,
this court concludes that the petition presents no federal
question of substance worthy of attention from the Court of
Appeals and, therefore, pursuant
to 28 U.S.C. § 2253 and Fed.R.App.P. 22(b), this court denies
a certificate of probable cause. Finally, because it appears that
any appeal would not be taken in good faith, leave to appeal in
forma pauperis will be denied.
IT IS SO ORDERED.
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