The opinion of the court was delivered by: Larimer, Chief Judge.
Petitioner, Rafael Antonoio Romero ("Romero"), a citizen of
the Dominican Republic, was ordered removed from the United
States following a July 14, 1999 conviction for the criminal
sale of a controlled substance. Romero then filed a petition in
this Court pursuant to 28 U.S.C. § 2241, seeking to vacate his
order of deportation. Now pending before this Court is the
Government's motion to dismiss Romero's petition. See FED. R.
CIV. P. 12(b)(6).
Romero essentially contends that because he committed the
criminal conduct Which led to his July 1999 conviction before
the enactment of the AEDPA and the IIRIRA, he is still eligible
for relief from deportation. According to Romero, he was first
arrested on October 30, 1986, and charged with the criminal sale
of a controlled substance in the third degree, see N.Y. PENAL
LAW § 220.43. Docket No. 7, ¶ 1. Apparently, Romero was released
from custody, because on March 11, 1987, a pre-arraignment
warrant relating to this charge was issued. Id. at ¶ 2;
Attachment to Petition: Report of Romero's Criminal History, p.
2. On February 25, 1999, after he was stopped at a "random
Police check point," Romero was arrested based on this
outstanding warrant. Docket No. 7, ¶ 2. Romero pleaded guilty,
and was sentenced on July 14, 1999.
Petitioner's argument here is foreclosed by the Second
Circuit's decision in Domond v. I.N.S., 244 F.3d 81 (2d Cir.
2001). In Domond, the court addressed the question of "whether
elimination of Section 212(c) hearings for those whose criminal
conduct predates AEDPA's effective date but whose convictions
post-date it is impermissi[b]ly retroactive." Id. at 84. The
court found that the AEDPA did not have an improperly
retroactive effect on aliens such as Romero. Id. at 85-86
(noting that "it would border on the absurd to argue that Domond
would have decided not to commit a crime if he had known that he
not only could be imprisoned, but also could face deportation
without the availability of a discretionary waiver of
deportation") (quotations and alterations omitted). Thus,
because Romero's plea and conviction post-date the enactment of
the AEDPA, he is not entitled to seek relief from deportation
pursuant to Section 212(c).
Petitioner argues in the alternative that he is eligible to
apply for cancellation of removal pursuant to INA Section 240A,
8 U.S.C. § 1229b(a). Section 240A provides that:
The Attorney General may cancel removal in the case
of an alien who is inadmissible or deportable from
the United States if the alien —
(1) has been an alien lawfully admitted for
permanent residence for not less than 5 years,
(2) has resided in the United States continuously
for 7 years after having been admitted in any
(3) has not been convicted of any aggravated
Petitioner's 1999 conviction constitutes an aggravated felony
under the statute. 8 U.S.C. § 1101(a)(43)(B); see United States
v. Bonnet-Grullon, 212 F.3d 692, 693 (2d Cir.), cert. denied,
531 U.S. 911, 121 S.Ct. 261, 148 L.Ed.2d 189 (2000). Therefore,
he is ineligible for the relief he seeks.
The Government's motion to dismiss (Dkt. No. 4) is granted,
and Romero's petition is dismissed. Romero's petition for ...