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United States District Court, Southern District of New York

January 29, 2003


The opinion of the court was delivered by: Michael B. Mukasey, United States District Judge.


Clive Anthony Duncan, a Jamaican national, entered the United States without inspection in September 1981. He was convicted in the courts of the State of New York in 1987 of criminal sale of marijuana, and in 1990 of robbery, kidnapping, and related charges on which he is now imprisoned. In 1990, he was ordered removed from the United States by an immigration judge on grounds of inadmissibility under the Immigration and Nationality Act of 1952, as amended ("INA"). His appeal to the Board of Immigration Appeals ("BIA") was dismissed and the order affirmed. He petitions pro se*fn1 for habeas corpus relief pursuant to 28 U.S.C. § 2241 to prevent his removal from this country upon his release from prison, which will occur at the earliest in December 2008. For the reasons discussed below, Duncan's arguments are without merit, the writ is denied, and the petition is dismissed.


The following facts, which are not in dispute, are based on the administrative record*fn2 developed during proceedings before the Immigration and Naturalization Service, and on inmate information provided by the New York State Department of Correctional Services.*fn3

Duncan is a Jamaican citizen who entered the United States without inspection in September 1981. (R 47-48) He was convicted in December 1987 in Supreme Court, New York County, of criminal sale of marijuana in the fourth degree, in violation of Sections 221.40 and 221.10 of New York State's Penal Law. (R 98) In February 1990, Duncan was convicted in Supreme Court, New York County, of robbery in the first degree, assault in the first degree, reckless endangerment in the first degree and kidnapping in the second degree, and his conviction was affirmed in November, 1992, by the Appellate Division, First Department. (R 79-81; DOCS at 1) In connection with the 1990 convictions, Duncan received an aggregate minimum sentence of 19 years, 10 months, and he will not be eligible for release on parole until December 3, 2008. (DOCS at 1)

On August 20, 1998, the INS served Duncan with a notice that he was subject to removal because he was an alien: (i) present in the United States without being admitted or paroled or who arrived at any time or place other than as designated by the Attorney General, see INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182 (a)(6)(A)(i) (2000), (ii) convicted of offenses for which the aggregate sentences were five years or more, see INA § 212(a)(2)(B), 8 U.S.C. § 1182 (a)(2)(B) (2000), and (iii) convicted of, or who admitted committing acts constituting the essential elements of, a crime involving moral turpitude, see INA § 212(a)(A)(i)(I), 8 U.S.C. § 1182 (a)(2)(A)(i)(I) (2000). (R 102-05)

At a hearing on December 9, 1998, while assisted by an accredited representative, Duncan admitted all the allegations in the notice other than the date of his unauthorized entry into this country, which was then agreed to have been a date in September 1981. The hearing was adjourned at that time so that Duncan could seek an adjustment of his status to that of lawful resident based on his marriage to a United States citizen. (R 46-49) Thereafter, on December 16, 1999, Duncan's representative was given notice of the marijuana sale conviction. (R 51-52)

On June 19, 2000, the hearing was resumed and the evidence of Duncan's conviction for criminal sale of marijuana in the fourth degree was received. The immigration judge ruled that Duncan was not eligible for an adjustment because of the marijuana sale conviction, and ordered him excluded. The judge reasoned that although Duncan's conviction was for a misdemeanor under New York law, because the conviction was for sale of a controlled substance, Duncan was ineligible for adjustment of his status and for a waiver under INA § 212(h). The judge found no relief available to Duncan, and ordered him removed to Jamaica. (R 36-37, 55-69)

Duncan appealed to the BIA. His representative initially submitted a statement appearing to argue a point that had no relationship to Duncan — that the INA permitted discretionary relief for persons convicted of marijuana offenses but not those convicted of cocaine offenses, and thereby created an irrational distinction that could not survive equal protection scrutiny. (R 8-11) However, there was also submitted in Duncan's behalf an addendum arguing that because drug trafficking is designated under the immigration laws a crime involving moral turpitude, and because discretionary relief is available in general to those convicted of such crimes, denying such relief to those convicted of a subset of such crimes — sale of drugs — "created an invidious class of aliens who have no relief from removal," presumably in violation of the equal protection clause of the Fifth Amendment. (R 28)

The BIA ruled as follows:

The respondent further argues that the Immigration Judge erred by pretermitting his application for adjustment of status under section 240A(c) of the [INA]. We find no error in the Immigration Judge's determination that the respondent's conviction for a drug offense renders him inadmissible to the United States under section 212(a)(2) of the [INA]. Because the respondent does not fall within the exception for a single conviction for simple possession of less than 30 grams of marijuana, he is precluded from seeking a waiver of inadmissibility under section 212(h) of the [INA]. Accordingly the respondent is statutorily barred from seeking adjustment of status.
The respondent argues on appeal that the immigration laws create distinctions between classes of aliens and therefore violates the Constitution. Neither the Immigration Judge nor this Board possesses the authority to rule on the constitutionality of laws enacted by Congress. [citations omitted] Accordingly, we are without authority to address this argument.
(R 7) Accordingly, the BIA dismissed Duncan's appeal. (Id.)

In his current petition, Duncan does not seem to dispute that he was properly found removable. Rather, he appears to argue that he is, or should be, eligible for a waiver of inadmissibility pursuant to INA § 212(h). He also attaches to his petition the brief that was filed in his behalf before the BIA by his representative. To the extent that there are issues raised either in Duncan's petition or in that brief, they will be addressed below.


Duncan suggests in his petition that he would have been eligible for relief under former section 212(c) of the INA, which provided that "[a]liens lawfully admitted for permanent residence . . . may be admitted in the discretion of the Attorney General." He suggests that its repeal as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 304(b), Div. C, Title III-A, 110 Stat. 3009-597 (Sept. 30, 1996), violates the principle of presumed non-retroactivity of statutes reaffirmed in Landgraf v. USI Film Products, 511 U.S. 244 (1994). (Pet. at 2-3) His logic seems to be that because the repealed section was in force when his various convictions occurred, he should be entitled to the benefit at least of seeking a discretionary waiver of inadmissibility.

This claim fails for at least three reasons. First, Duncan did not press this point before the BIA, and thus he may not press it here. The INA requires aliens to exhaust administrative remedies before they seek judicial review. See 8 U.S.C. § 1252 (d)(1) ("A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right . . . ."). See also United States ex rel. Dearmas v. INS, No. 99 Civ. 11069, 2000 WL 943348, at *2 (S.D.N.Y. July 10, 2000) (alien may not assert in habeas action a claim he did not press administratively)

Second, there is no offense to retroactivity principles in applying, to an alien criminal's detriment, a statute that attaches consequences to his crime but was passed after his crime was committed, so long as the statute was not passed after the start of the administrative proceeding in which it is applied. See Then v. INS, 58 F. Supp.2d 422, 429-31 (D.N.J. 1999) (amendment to INA, passed as part of Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), that denies discretionary waiver of inadmissibility to drug offenders other than those convicted of possessing small amounts of marijuana for personal use may be applied as to convictions entered before effective date of AEDRA without offending presumption of retroactivity), aff'd 208 F.3d 206 (3d Cir. 2000) (table).

Third, the section by its terms would not help Duncan even if it could apply to him because he was never an alien "lawfully admitted for permanent residence."

Duncan's other arguments are equally unavailing. That Duncan's 1987 marijuana sale conviction was not listed in the notice as a basis for finding him inadmissible has no bearing on whether it bars a discretionary waiver of inadmissibility. Duncan does not dispute that his 1990 convictions are ample basis for removing him. The only issue is whether he is eligible for a discretionary waiver, and what prevents that is his 1987 marijuana sale conviction, which he also does not dispute.

Nor is it relevant that the 1987 conviction can be classified as a "crime involving moral turpitude" under INA § 212(a)(2)(A)(i)(I). Although under § 212(h) the Attorney General may grant a waiver of inadmissibility in relation to a crime involving moral turpitude, if that crime is also a violation of the controlled substance laws as described in INA § 1182(a)(2)(A)(i) (II), he may do so only if the crime involves simple possession of 30 grams or less of marijuana. See 8 U.S.C. § 1182 (h).

Duncan's suggestion that the statute is constitutionally suspect for distinguishing between cocaine and marijuana offenses has no relevance to him because he was not convicted of an offense involving cocaine, and therefore cannot provide a basis for relief. One who is not "`personally denied equal treatment'" has no standing to use such denial as a basis for relief. Allen v. Wright, 468 U.S. 737, 755 (1984) (quoting Heckler v. Mathews, 465 U.S. 728, 740 (1984).

Duncan has challenged as well the distinction the statute draws between aliens who have possessed small amounts of marijuana, and those who have trafficked in any amount of drugs, including marijuana, and suggests that the distinction denies him equal protection of the laws. Although the Fifth Amendment, unlike the Fourteenth, contains no language guaranteeing equal protection of the laws, "there is a well-established equal protection component to the Fifth Amendment Due Process Clause applicable to the federal government." Skelly v. INS, 168 F.3d 88, 91 (2d Cir. 1999). However, the distinction the statute draws is not subject to strict scrutiny, as Duncan suggested before the BIA (R 10-11, 28), but rather, like other distinctions between classes of aliens, to "rational basis review." Domond v. INS, 244 F.3d 81, 87 (2d Cir. 2001). To uphold a distinction drawn by statute between classes of aliens, "[t]he government need only articulate a rational reason for making the distinction, and need not provide any evidence to support the rationality of the reason." Id. There is an obvious distinction between the potential damage from simple possession, which arguably affects principally the person possessing a controlled substance, and the potential damage from sale, which affects others. That distinction presents a "rational reason" for upholding different treatment for those who engage in one course of conduct from that accorded those who engage in another. Congress does not violate equal protection principles when it chooses to deal with that "phase of the problem which seems most acute to the legislative mind." Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955).

For the above reasons, the writ is denied and the petition is dismissed.


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