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WORRELL v. ASHCROFT

March 29, 2002

PHILIP ORLANDA WORRELL, #A37186541, PETITIONER,
V.
JOHN ASHCROFT, ATTORNEY GENERAL,[FN1] INS ET AL., RESPONDENTS.



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, respondents' motion to dismiss [#11], and petitioner's motions [#15][#18][#19] requesting that he be released from the custody of the U.S. Immigration and Naturalization Service (INS). For the reasons that follow, respondents' motion to dismiss is granted, petitioner's motions are denied, and the petition is dismissed.

BACKGROUND

The facts of this case are not in dispute. Petitioner is a citizen of Barbados, who has been residing in the United States as a legal permanent resident since March 20, 1984. On June 6, 1990, petitioner was indicted on the charge of Criminal Possession of a Weapon in the 3rd degree, for an incident that occurred on May 29, 1990. On March 27, 1991, petitioner pled guilty to this charge in New York State Supreme Court, Bronx County, and was sentenced to five years of probation. On October 26, 1998, petitioner was also convicted of Criminal Contempt, and was sentenced to one year in jail. According to respondents, petitioner was convicted of the contempt charge as a result of violating an order of protection and threatening to kill his former girlfriend. (Decision to Continue Detention dated August 16, 2000, attached to document [#10]). Petitioner acknowledges the contempt conviction, but denies that he violated the order of protection or that he threatened to kill anyone. (Petitioner's Brief and Appendix, attached to document [#10], p. 5).

As a result of his conviction for possession of a weapon, the INS charged petitioner with removability pursuant to INA § 237(a)(2)(C). Although, as noted, petitioner committed the weapons offense in 1990, and was convicted in 1991, the INS did not begin removal proceedings against him until September 8, 1998. (Respondents' Motion to Dismiss, Exhibits, p. 27). In the meantime, and as will be discussed further below, the Immigration and Nationality Act ("INA") had been amended twice, first by the Antiterrorism and Effective Death Penalty Act (AEDPA), and then by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The impact of these amendments, with regard to the instant case, was succinctly described in a recent decision by Judge Block of the Southern District of New York:

Prior to 1996, former INA § 212(c) allowed immigrants [found deportable] an opportunity for a discretionary hearing where they could urge waiver of deportation on compassionate grounds. Section 212(c) was limited and then eliminated by two statutes adopted in 1996, the [AEDPA] and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (collectively, the `1996 Acts').
Although the 1996 acts eliminated § 212(c), Congress provided, in its place, for a new, limited opportunity to avoid deportation, known as "cancellation of removal." See 8 U.S.C. § 1229b.

Cyrus v. Ashcroft, ___ F. Supp.2d ___, No. 00-CV-3621 (FB), 2002 WL 377050 at *1-2 (S.D.N.Y. Mar. 8, 2002). Section 1229b provides, inter alia, that to be eligible for cancellation of removal, the alien must have "resided in the United States continuously for 7 years after having been admitted." 8 U.S.C. § 1229b(a)(2). However, Section 1229b(d)(1) contains a "stop-time provision," which provides that any period of continuous residence shall be deemed to end when the alien is served with a notice to appear, or when the alien commits the offense which renders him removable. In the instant case, petitioner committed his weapons offense less than seven years after being admitted to the United States.

Petitioner was represented by counsel at all stages of the immigration proceedings. Throughout those proceedings, petitioner maintained that he should not be deported for two reasons.*fn2 First, he claimed that the IIRIRA could not retroactively repeal INA § 212(c), and that accordingly, he was eligible for 212(c) relief. Second, and alternatively, he argued that he was eligible for cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a). In finding the petitioner deportable, the Immigration Judge ("IJ") first noted, inter alia, that "Section 212(c) relief has never been available to cure deportability based on criminal possession of a weapon." (Respondents' Motion to Dismiss [#11], Exhibits, p. 68). Further, the IJ found that petitioner was not eligible for cancellation of removal, because he had not resided in the United States for a continuous period of seven years prior to committing the weapons offense. Petitioner, on the other hand, argued that, in calculating the period described in Section 1229b(a)(2), the IJ should not have used the date of the offense, but instead, should have used the date of his conviction, March 27, 1991, which would have resulted in a period of more than seven years. Petitioner further argued, that the IJ should not retroactively apply the "stop time" provision of Section 1229b(d)(1). However, the IJ, relying on a decision of the Board of Immigration Appeals, In re Christobal Perez, Int. Dec. 3389 (BIA May 12, 1999), held that, although petitioner's conviction occurred prior to the enactment of IIRIRA, "the relief of cancellation of removal is both discretionary and prospective in nature," and "therefore does not impair a substantive right to relief that was in place prior to its enactment." (Id., p. 122). On appeal to the Board of Immigration Appeals ("BIA"), petitioner again argued that he should be eligible for Section 212(c) relief, or, in the alternative, for cancellation of removal, however, on October 27, 1999, the BIA affirmed the decision of the IJ and dismissed petitioner's appeal.

On November 9, 1999, the INS released petitioner on a $5,000.00 security bond. However, on November 29, 1999, the INS took petitioner back into custody, and since that time has detained him at the Buffalo Federal Detention Facility, to await deportation to Barbados. (See, Petitioner's Motion Requesting Release [#19], p. 5). On August 16, 2000, the INS sent petitioner a "Decision to Continue Detention Following File Review," which stated, in relevant part:

Further review of your file indicates that you pose a significant threat to your former common-law spouse/girlfriend. You have previously threatened to kill this person and you were subsequently sentenced to a term of one year [sic] for violating an order of protection. This conviction combined with your previous conviction for possession of a loaded firearm in 1990 indicates that you remain a threat to the community.
We have seriously considered all options and possibilities regarding your case and have concluded that it is not likely that you will prevail in [court]. Previous appeals have not been decided in your favor. It does not appear to the Service that you would be [a] flight risk based upon the fact that you have previously appeared when required, however, you have not sufficiently proven to the Service that you would not pose a risk if released.

(Petitioner's Memo of Law [#10], Exhibit A). On February 16, 2001, the INS sent petitioner a notice entitled "Decision to Continue Detention Following Interview," which again denied him release from custody. This notice contained the same reasoning as the August 16, 2000 notice, but further noted:

[T]he service will be able to obtain a travel document for your return to Barbados if your appeals are ultimately dismissed. You asked the Service to review previously submitted letters of support in consideration of your release. You failed to remember the address of the employer who has allegedly offered you a job upon your release. In addition, you failed to remember the last name of the same individual for whom you claim you worked prior to your incarceration. The Service does not consider this a viable job opportunity because of the lack of proper evidence.

(Attachment to Petitioner's Motion Requesting Release [#15]). On July 26, 2001, the INS sent petitioner another notice, entitled "Decision to Continue Detention," which states:

[Y]our custody status has been reviewed and it has been determined that you will not be released from the custody of the [INS] at this time. . . . It has further been determined that repatriation to Barbados is feasible upon completion of your legal proceedings. A travel document will be available upon request to the Government of Barbados and it is likely you will be removed in the foreseeable future. You may submit evidence to the contrary if you believe your removal is not possible in the foreseeable future.

(Attachment to Petitioner's Motion Requesting Release [#19]). It does not appear that petitioner has attempted to demonstrate that the INS would have ...


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