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repealed, effective September 30, 1996.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)
At the outset, the Court finds that petitioner's Section 212(c) claim
denied. IIRIRA § 304(b), which took effect on September
30, 1996, repealed Section 212(c). Nor is this a case involving
retroactivity, since plaintiff pled guilty to the crimes long after the
repeal of § 212(c). Accordingly, petitioner's request pursuant to
212(c) was properly denied.
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 States continuously for 7 years
after having been admitted in any status, and (3) has
not been convicted of any aggravated felony.
8 U.S.C. § 1229b(a) (1999).
St. Cyr, 229 F.3d at 411-12.
The only issue to be resolved, then, is whether or not either of
petitioner's convictions constitute an aggravated felony, within the
meaning of 8 U.S.C. § 1229(b), which would disqualify him from
eligibility under Section 1229b. The term "aggravated felony" is defined
at 8 U.S.C. § 1101(43)(B) to include "illicit trafficking in a
controlled substance (as defined in section 802 of Title 21), including a
drug trafficking crime (as defined in section 924(c) of Title 18)."
28 U.S.C. § 924(c)(2) defines a "drug trafficking crime" as "any
felony punishable under the Controlled Substances Act (21 U.S.C. § 801
et seq.), the Controlled Substances Import Act (21 U.S.C. § 951 et
seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et
seq.)." Petitioner's conviction for selling cocaine, in violation of New
York Penal Law § 220.39, Criminal Sale of a Controlled Substance in
the Third Degree, constitutes a drug trafficking crime with the meaning
of 18 U.S.C. § 924(c). See, Gutierrez v. Reno, No. 99 CIV. 11036
RWS, 2000 WL 1643585 at *4 (S.D.N.Y. Nov. 1, 2000) ("[Petitioner's]
guilty plea to selling narcotics [in violation of New York Penal Law
§ 220.39] clearly qualifies as an `aggravated felony' under this
standard."). Accordingly, the Court finds that petitioner is ineligible
for cancellation of removal under 8 U.S.C. § 1229b. Nor has he
otherwise shown that he is entitled to relief from deportation.
Therefore, for the reasons stated above, respondents' motion to dismiss
is granted, and the petition is dismissed. The Court hereby certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order
would not be taken in good faith and leave to appeal to the Court of
Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438
(1962). Further, requests to
proceed on appeal in forma pauperis should
be directed on motion to the United States Court of Appeals for the
Second Circuit in accordance with Rule 24 of the Federal Rules of