The pivotal issue in this case, then, is whether Diaz is able
to challenge the application of AEDPA § 440(d) or IIRIRA 304 to
him as impermissibly retroactive. If he cannot and either statute
applies to this case, Diaz is removable because he pled guilty to
a deportable offense and is statutorily ineligible to apply to
the BIA for discretionary relief from deportation.
The case cited by Petitioner in support of his argument,
Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), stands for the
principle that a Petitioner may challenge the retroactive
application of AEDPA § 440(d) if immigration proceedings were
commenced before AEDPA took effect in April, 1996. Most recently,
the Second Circuit has held that even where INS proceedings
commenced after the enactment of AEDPA and IIRIRA, a Petitioner
may still challenge their retroactive application if the
Petitioner pled guilty or nolo contendere prior to the relevant
enactment dates. See St. Cyr v. INS, 229 F.3d 406 (2d Cir.
2000), cert. granted, ___ U.S. ___, 121 S.Ct. 848, 148 L.Ed.2d
733 (2001) (finding that the controlling date for ascertaining
whether the AEDPA and IIRIRA bars to discretionary relief apply
is the date of the guilty plea); see also IIRIRA § 309(c)(1),
110 Stat. at 3009-625 (most of IIRIRA amendments to the INA do
not apply to aliens placed in deportation proceedings prior to
April 1, 1997).
In the instant case, Diaz pled guilty on May 5, 1997, after the
enactment of both AEDPA in April 1996 and IIRIRA's permanent
rules in April 1997. Consequently, the application of the bars
eliminating discretionary relief to Diaz cannot be deemed
impermissibly retroactive and their operation divests this Court
of authority to consider any claims for relief under former INA §
B. Detention in INS Custody
Diaz challenges his detention in INS custody while the INS
attempts to effect his removal. By decision dated December 16,
1999, the INS District Director considered Diaz' suitability for
release and determined that he should remain detained. (December
17 Letter Ex. B.) The decision specifically stated that Diaz
could make an "appeal . . . to the Board of Immigration Appeals
("BIA") within 10 days." (Id.) See also
8 C.F.R. § 236.1(d)(3)(iii) (1999). Diaz did not appeal to the BIA. (Decl.
of Wanda Sue Gearheart ¶ 5.)
A subsequent decision denying Diaz' request for release dated.
November 1, 2000 also specifically advised Diaz of his right to
appeal to the BIA within 10 days. (November 3, 2000 Letter,
Ex.D.) To date, Diaz has not filed any such appeal. The
Government argues that Diaz' challenge to his detention in INS
custody should be dismissed without prejudice for failure to
exhaust administrative remedies.
It has long been established that an applicant for a writ of
habeas corpus must first exhaust his administrative remedies.
Gonzalez v. Perrill, 919 F.2d 1, 1-2 (2d Cir. 1990); Giwah v.
McElroy, No. 97 Civ. 2524(RWS), 1997 WL 782078, at **3-4
(S.D.N.Y. Dec. 19, 1997) (dismissing habeas petition where
petitioner failed to appeal custody determination to the BIA).
Here, Diaz has failed to seek BIA review of the INS decision. It
appears that until Diaz decides to appeal a District Director
decision to the BIA, as he was advised of his right to do, a
District Director denial of bail will never be ripe for review by
a district court. He will apparently get another chance should
bail be again denied, in May of 2001. (November 3, 2000 Letter,
Ex.D at 7.) Accordingly, Diaz' challenge to his detention in INS
custody is DISMISSED WITHOUT PREJUDICE
for failure to exhaust administrative remedies.
C. Motion for Health-related Release
Diaz has also filed a post-petition "Motion for Release on
Health Related Basis" dated June 4, 1999, which requests that he
be released on a bond so that he may be hospitalized and
rehabilitated due to his alleged chronic epilepsy. The Government
argues that Diaz' health does not require release from INS
custody because he is receiving adequate medical care.
The relevant medical records indicate that Diaz has had a
seizure disorder since childhood. (Declaration of Carolyn Chipman
("Chipman Decl.") ¶ 4.) Although Diaz' condition is chronic and
is not curable, it can be treated with medication. (Id.) Diaz'
prescription medication is dispensed to him on a daily basis by
the medical unit. (Id. ¶ 5.) Indeed, if Diaz forgets to
retrieve his medication, the medical unit reminds him to do so.
(Id.) In addition, Diaz' blood is tested on a monthly basis to
determine whether his medication dosage is sufficient; at the
time of his motion, Diaz' blood was within normal limits. (Id.
¶ 6.) Finally, there is no indication that Diaz' condition is
deteriorating, nor has he experienced any seizures during his
detainment at York County Prison. (Id. ¶ 7.) Accordingly, Diaz'
motion for health-related release is DENIED.
For the foregoing reasons, Petitioner's challenge to his
removal order is DENIED. His motion for health-related release is
also DENIED. Diaz' petition is dismissed without prejudice to its
renewal only insofar as he is seeking to challenge his detention
pending removal and has timely exhausted his administrative
As Petitioner has not made a substantial showing of the denial
of a constitutional right, a Certificate of Appealability will
not issue. 28 U.S.C. § 2253. The Court certifies pursuant to
28 U.S.C. § 1915(a)(3) that any appeal from this order would not be
taken in good faith. See Coppedge v. United States,
369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
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