The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge.
Now before the Court are petitioner's petition for a writ of habeas
corpus [#1], pursuant to 28 U.S.C. § 2241, and respondents' motion to
dismiss [#6]. For the reasons that follow, respondents' motion to dismiss
is granted, and the petition is dismissed.
The facts of this case are not in dispute. This is an action seeking a
writ of habeas corpus in connection with a final removal order issued by
the U.S. Immigration and Naturalization Service ("INS"). Petitioner is a
native and citizen of the Dominican Republic, who, since on or about
March 8, 1981, was a lawful permanent resident of the United States. On
January 20, 1998,
petitioner pled guilty to Criminal Sale of a Controlled
Substance (cocaine) in the Third Degree, and on January 27, 1998, he pled
guilty to Attempted Criminal Possession of a Controlled Substance
(cocaine) in the Third Degree, both times in New York State Supreme
Court, County of New York. On or about March 26, 1998, as a result of
these convictions, the INS commenced removal proceedings against
petitioner, pursuant to 8 U.S.C. § 1227 (a)(2)(A)(iii), for conviction
of an aggravated felony, and 8 U.S.C. § 1227(a)(2)(B)(i), for
conviction of a controlled substance violation. On June 11, 1998,
petitioner appeared, along with his counsel, at a hearing before an
Immigration Judge ("IJ"). At the hearing, petitioner conceded that he was
removable, for the reasons charged, however, he sought relief from
removal pursuant to Section 212(c) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1182(c): "Judge, at this time I'd like to reserve
the respondent's right. We're going to be requesting a 212(c) relief
[sic]." (Transcript of hearing, pp. 7-8). However, the IJ denied
petitioner's request, noting that, "there is no 212(c) any more." (Id.).
The IJ further advised petitioner that he was not available for any other
type of relief from removal. (Id., pp. 9-10). Accordingly, the IJ ordered
that petitioner be removed from the United States and returned to the
Petitioner, still represented by counsel, appealed to the Board of
Immigration Appeals ("BIA"), still claiming to be entitled to relief
under INA § 212(c), notwithstanding the fact that section had been
repealed, effective September 30, 1996. (See, Petitioner's Brief before
the BIA, attached to Respondent's Answer and Return [#3]). By Order dated
April 6, 1999, the BIA dismissed the appeal, noting that, pursuant to
Section 304(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), a 212(c) waiver "is not a form of
relief that is available. See, section 304(b) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110
Stat. 3009 (`IIRIRA') [repealing 8 U.S.C. § 1182(c)]."
Petitioner filed the subject petition for writ of habeas corpus on June
3, 1999, raising the following issue: "[W]hether the [Board of
Immigration Appeals] erred in finding the plaintiff statutorily
ineligible for § 212(c) relief." (Petitioner's Memo of Law [#5], p.
5). Respondents contend that the petition should be dismissed on two
grounds. First, they indicate that petitioner is ineligible for 212(c)
relief, section 212(c) was repealed in 1996.
Second, they indicate that petitioner is also not able to seek
cancellation of removal, pursuant to 8 U.S.C. § 1229b, since he is
convicted of an aggravated felony. On October 25, 1999, petitioner was
released from INS custody upon a $15,000 surety bond. The Court has
thoroughly considered the parties' submissions and the entire
It is well settled that "[a] petition for habeas corpus may be used to
challenge incarceration or orders of deportation as being `in violation
of the Constitution or laws or treaties of the United States.'" Sol v.
I.N.S., 274 F.3d 648, 651(2d Cir. 2001) (citing
28 U.S.C. § 2241(c)(3)), pet. for cert. filed, (Feb. 5, 2002) (No.
01-8465). The Court has subject matter jurisdiction over the matters
raised herein. See, I.N.S. v. St. Cyr, 121 S.Ct. 2271, 2287 (2001).
INA § 212(c), 8 U.S.C. § 1182(c)
INA § 240A(a), 8 U.S.C. § 1229b(a)
Although Section 212(c) had been repealed at the time of petitioner's
hearing, there did exist at that time another form of relief, know as
cancellation of removal. See, St. Cyr v. I.N.S., 229 F.3d 406, 421 (2d
Cir. 2000), affirmed, 121 S.Ct. 2271 (2001) ("[C]ancellation of removal
[pursuant to 8 U.S.C. § 1229b] . . . applies to all aliens with
convictions pre-dating IIRIRA and to all guilty pleas entered by aliens
to deportable crimes after it took effect.") (emphasis added). In St.
Cyr, the Second Circuit Court of Appeals noted that
[t]he permanent provisions of IIRIRA . . . repeal INA
§ 212(c) altogether and consolidate prior
"suspension of deportation" relief and aspects of
former § 212(c) relief into an entirely new form
of relief. See 8 U.S.C. § 1229b(a)(3) (1999).
Section 304(a) of IIRIRA, entitled "Cancellation of
removal for certain permanent residents," found at INA
§ 240A, provides: 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 ...