the Attorney General's application of law to specific facts."
See Henderson, 157 F.3d at 120 n. 12.
The Second Circuit did not expressly hold that the Attorney
General's factual findings or discretionary decisions lie beyond
the scope of habeas review, but several circuits and at least one
court in this district have. See Liang v. I.N.S., 206 F.3d 308,
321 (3d Cir. 2000) ("We agree, of course, with the proposition
that habeas corpus need not preserve review of discretionary
decisions"); Bowrin v. U.S.I.N.S., 194 F.3d 483, 490 (4th Cir.
1999) ("Only questions of pure law will be considered on § 2241
habeas review. Review of factual discretionary issues is
prohibited."); Sol v. I.N.S., 2000 WL 1154048, No. 97 Civ. 5994
(S.D.N.Y. Aug. 15, 2000) (habeas court lacks jurisdiction to
review discretionary decision).
Here, the immigration judge held that, as a matter of law,
Akhtar was eligible to apply for § 212(c) relief, but found that
based on the evidence presented, the discretionary relief was not
warranted. That decision was affirmed by the BIA, and the limited
scope of habeas review that is available to Akhtar does not
extend to the review of such a discretionary determination.
Jurisdiction to Review Denial of Application Under Torture
Convention for Deferral of Removal
Treaties are not, in general, privately enforceable. Unless a
treaty is self-executing, its terms give rise to a private cause
of action only if Congress enacts authorizing legislation. See
Igartua De La Rosa v. United States, 32 F.3d 8, 10 n. 1 (1st
Cir. 1994); Columbia Marine Svcs., Inc. v. Reffet Ltd.,
861 F.2d 18, 21 (2d Cir. 1988); Dreyfus v. Von Finck, 534 F.2d 24,
30 (2d Cir. 1976). In giving its advice and consent to
ratification of the Torture Convention, the Senate expressly
declared that the provisions of the Convention would not be
self-executing. See S. Exec. Rep. No. 30, 101st Cong., 2d Sess.
31 (Aug. 30, 1990); 136 Cong. Rec. S17486-01, 1990 WL 168442
(Oct. 27, 1990); S. Treaty Doc. No. 100-20, at 2. While the
question of "[w]hether a treaty is self-executing is an issue for
judicial determination," Frolova v. Union of Soviet Socialist
Republics, 761 F.2d 370, 373 (7th Cir. 1985), the intentions of
the parties to the treaty are an important consideration, and the
Senate's declaration is evidence that the United States did not
intend for the Convention to be self-executing. Indeed, each
court that has considered the issue has determined that the
Convention is not self-executing. See, e.g., Sandhu v. Burke,
No. 97 Civ. 4608, 2000 WL 191707 at *9 (S.D.N.Y. Feb.10, 2000);
Barapind v. Reno, 72 F. Supp.2d 1132, 1149 (E.D.Cal. 1999);
Calderon v. Reno, 39 F. Supp.2d 943, 956-57 (N.D.Ill. 1998);
White v. Paulsen, 997 F. Supp. 1380, 1386 (E.D.Wash. 1998); In
re Extradition of Cheung, 968 F. Supp. 791, 803 n. 17 (D.Conn.
1997). Given the apparent intent of the United States that the
Convention not be self-executing, this Court joins the numerous
other courts that have concluded that the Convention is not
The Foreign Affairs Reform and Restructuring Act of 1998
("FARRA"), Pub.L. No. 105-277, 112 Stat. 2681-761 (Oct. 21,
1998), authorized the Attorney General to promulgate regulations
implementing the United States' obligations under the Torture
Convention, subject to the conditions of ratification set by the
Senate. See FARRA § 2242(b), 112 Stat. 2681-822 (1998). In
addition, FARRA created a limited private right of action for
claims under the Torture Convention and authorized limited
jurisdiction for courts to review decisions made with respect to
claims for protection under the Convention.
[N]othing in this section shall be construed as
providing any court jurisdiction to consider or
review claims under the Convention or this section .
. . except as part of the review of a final order of
removal pursuant to section 242 of the [INA]
(8 U.S.C. § 1252).