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MOHAMMED v. RENO

May 17, 2002

HANIFF MOHAMMED, PETITIONER,
V.
JANET RENO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Gleeson, District Judge.

MEMORANDUM AND ORDER

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.

The Facts

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.

Mohammed is an auto body repair man. In 1993, he was arrested and convicted on a federal charge in the Middle District of Pennsylvania after he obtained a Pennsylvania title for a stolen Mercedes with an altered vehicle identification number. He was sentenced to three months in prison, which was followed by a two-year supervised release term.

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.

Procedural History

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 decision.

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.

DISCUSSION

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)).


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