The opinion of the court was delivered by: Gleeson, District Judge.
Haniff Mohammed committed a property crime in March of 1996. He was
convicted by a jury in state court in September of 1997. He was ordered
removed by the Immigration and Naturalization Service ("INS") in July of
1999. He petitions pursuant to 28 U.S.C. § 2241, claiming that he was
improperly denied the opportunity to seek discretionary relief from an
order of removal.
I believe he is right, but a binding decision of the Second Circuit,
Domond v. INS, 244 F.3d 81 (2d Cir. 2001), says he is wrong.
Accordingly, I follow Domomd and deny the petition, but I set forth
below, briefly and respectfully, why I believe Domond is at odds with
controlling case law of the Supreme Court.
Haniff Mohammed was born in Trinidad on June 20, 1957. He first entered
the United States in 1980, illegally. In 1990, he applied for and
received amnesty under 8 U.S.C. § 1255 (a), as an alien illegally in
the United States prior to January 1, 1981. He thereby attained the
status of a lawful permanent resident on March 12, 1990.
On March 28, 1996, Mohammed's supervising probation officer visited his
home in Queens and found part of a dismantled Mercedes that had been
reported stolen. Criminal charges arising out of this event were brought
in state court. Mohammed was found guilty by a jury on September 2,
1997, of criminal possession of stolen property in the fourth degree (a
Class E felony) and a misdemeanor charge of unauthorized use of a
vehicle. On October 14, 1997, he was sentenced to an indeterminate prison
term of two to four years for the felony conviction and to a concurrent
one-year term on the misdemeanor conviction. After an unsuccessful
appeal, Mohammed began serving his sentence on December 4, 1998.
While serving his sentence, Mohammed received a notice from the INS to
appear for removal on the ground that his conviction for criminal
possession of stolen property constituted an aggravated felony. On July
14, 1999, an immigration judge ordered his removal. The judge denied
Mohammed's request for discretionary relief from deportation pursuant to
the former § 212(c) of the Immigration and Nationality Act ("INA"),
8 U.S.C. § 1182(c). The judge concluded that Mohammed was ineligible
for such relief on the ground that the statute had been repealed. On
November 15, 1999, the Board of Immigration Appeals affirmed that
On July 18, 2000, Mohammed filed this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241, asserting that he was entitled
to be considered for a waiver of deportation under § 212(c) as it
existed at the time of his crime in March 1996.
A. The Statutory Framework
On April 24, 1996, President Clinton signed the Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214
(1996) ("AEDPA"), which made certain changes to the INA regarding
deportabiity. For the purposes of this petition, AEDPA's relevant changes
included the expansion of the range of criminal offenses that could
render an alien deportable*fn1 and the elimination of discretionary
waivers of deportation for those aliens deportable by reason of having
committed, inter alia, an aggravated felony or a drug offense. See AEDPA
§ 440(d) (amending old INA § 212(c), 8 U.S.C. § 1182 (c)).